                                                                            FILED
                             NOT FOR PUBLICATION                            DEC 15 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


GERMAN CARLOS HERNANDEZ                          No. 13-73443
AQUINO,
                                                 Agency No. A095-707-709
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      German Carlos Hernandez Aquino, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

adjustment of status as a matter of discretion. Our jurisdiction is governed by 8

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We review de novo questions of law and constitutional claims.

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part

and dismiss in part the petition for review.

      Contrary to Hernandez Aquino’s contention, the agency applied the correct

legal standards and considered all relevant factors, including rehabilitation and

individual offenses, in determining that Hernandez Aquino did not warrant a

favorable exercise of discretion. See Vargas-Hernandez v. Gonzales, 497 F.3d

919, 923-24 (9th Cir. 2007) (for discretionary determinations, the agency should

consider and weigh all relevant factors); see also Najmabadi v. Holder, 597 F.3d

983, 987, 990 (9th Cir. 2010) (“[t]he [BIA] does not have to write an exegesis on

every contention” (citation and internal quotation marks omitted)). Nor did the

agency improperly create a legal “bar” to adjustment of status based on gang

association. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir. 1994) (the

BIA may “consider evidence of conduct that does not result in a conviction” in

deciding whether to grant discretionary relief based on the balance of equities).

      The agency did not err or violate Hernandez Aquino’s right to due process in

admitting evidence and testimony pertaining to his association with a gang. See

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003) (“in immigration

proceedings [t]he sole test for admission of evidence is whether the evidence is


                                           2                                   13-73443
probative and its admission is fundamentally fair” (citation and internal quotation

marks omitted)).

      Hernandez Aquino’s contention regarding the IJ’s alleged bias is not

supported by the record. See Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir.

2007).

      We lack jurisdiction to review Hernandez Aquino’s remaining challenges to

the agency’s discretionary denial of adjustment of status because they do not

constitute colorable constitutional claims or questions of law that would invoke our

jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Bazua-Cota v. Gonzales, 466 F.3d 747,

748-49 (9th Cir. 2006) (while this “court retains jurisdiction over petitions for

review that raise colorable constitutional claims or questions of law,” a petitioner

may not attack a discretionary decision simply by phrasing his abuse of discretion

challenge as questions of law).

      We reject Hernandez Aquino’s contention that his appeal required review by

a three-member panel of the BIA. See 8 C.F.R. § 1003.1(e)(6).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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