                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

LUCIANO URIARTE,                                No.    14-70586

                Petitioner,                     Agency No. A076-607-998

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                              Submitted August 11, 2017**
                                 Pasadena, California

Before: FARRIS, CALLAHAN, and OWENS, Circuit Judges.

      Luciano Uriarte, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ decision dismissing his appeal of an Immigration

Judge’s (“IJ”) decision finding him removable under 8 U.S.C. § 1227(a)(1)(A) for,

inter alia, making a material misrepresentation, and denying his application for a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretionary waiver of deportability under 8 U.S.C. § 1227(a)(1)(H). We deny the

petition in part and dismiss in part.

      1. Substantial evidence supports the agency’s determination that the

Department of Homeland Security (“DHS”) provided clear and convincing

evidence Uriarte was removable under 8 U.S.C. § 1227(a)(1)(A). See Nakamoto v.

Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004). Uriarte misrepresented material facts

by repeatedly failing to disclose his 1989 marriage in Mexico, including on his

1997 California marriage certificate, his immigrant visa petition, his sworn

statement to United States Citizenship and Immigration Services, and his

application for adjustment of status.

      2. We review de novo Uriarte’s claim that the IJ violated his due process

rights by failing to act as a neutral arbiter. See Colmenar v. INS, 210 F.3d 967, 971

(9th Cir. 2000). Uriarte’s claim is without merit. Contrary to Uriarte’s contention,

the IJ did not insist that DHS file marriage fraud charges against him and said

nothing to indicate she had prejudged the case. Likewise, Uriarte’s due process

rights were not violated by the IJ’s decision to move forward with a hearing on the

merits of his waiver application under 8 U.S.C. § 1227(a)(1)(H), rather than simply

granting relief when DHS initially indicated its non-opposition. Cf. Tadevosyan

v. Holder, 743 F.3d 1250, 1253 (9th Cir. 2014) (agency may not deny relief based

solely on DHS’s opposition). The record demonstrates Uriarte received a full and


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fair hearing of his claims and a reasonable opportunity to present evidence on his

behalf. See Lianhua Jiang v. Holder, 754 F.3d 733, 741 (9th Cir. 2014).

      3. Absent a colorable constitutional or legal claim, we lack jurisdiction to

review the agency’s discretionary denial of Uriarte’s application for waiver of

removal. See 8 U.S.C. §§ 1252(a)(2)(B)(ii), (a)(2)(D); Mendez-Castro v. Mukasey,

552 F.3d 975, 978 (9th Cir. 2009). Uriarte’s constitutional claims are not

colorable, therefore we dismiss that portion of his petition seeking review of the

agency’s discretionary determination under 8 U.S.C. § 1227(a)(1)(H).

      PETITION DENIED IN PART AND DISMISSED IN PART.




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