                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



OSCAR COLUNGA-GUZMAN,                            No. 08-74756

              Petitioner,                        Agency No. A098-266-406

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                            Submitted February 13, 2013 **
                              San Francisco, California

Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.

       Oscar Colunga-Guzman, a native and citizen of Mexico, petitions from the

Board of Immigration Appeals’ (“BIA”) decision denying cancellation of removal

because he failed to demonstrate good moral character. All of Colunga-Guzman’s




        *
             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).
arguments relate to his attempt to invoke the Fifth Amendment privilege against

self-incrimination when questioned before the Immigration Judge (“IJ”) about an

arrest.

          Colunga-Guzman first contends that the BIA violated his Fifth Amendment

privilege by upholding the IJ’s adverse inference drawn from the invocation. The

BIA may permissibly draw such an adverse inference from a noncitizen’s silence,

even if that silence was the result of a proper invocation of the Fifth Amendment

privilege. Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). Colunga-

Guzman further contends that the BIA was biased and violated his Due Process

rights by relying solely on his silence. There is, however, no indication in the

record that the IJ or the BIA exhibited overt bias or abdicated their roles as neutral

adjudicators. See Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir. 2007).

          Colunga-Guzman’s final contention is that the BIA erred in finding that he

lacked good moral character solely on the basis of such an adverse inference. We

lack jurisdiction to review discretionary determinations, 8 U.S.C. § 1252(a)(2)(B),

and this determination, made under the catchall provision of 8 U.S.C. § 1101(f),

was purely discretionary. Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th

Cir. 2006).

          Petition for review DENIED in part and DISMISSED in part.


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