Marco A. PEREZ-VILLALPANDO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 231 F. App'x 552

MEMORANDUM Marco A. Perez-Villalpando seeks review of an order of the Board of Immigration Appeals upholding an immigration judge’s order denying his application for cancellation of removal. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review. Contrary to Perez-Villalpando’s contentions, the agency did not deny relief for failure to prove good moral character, but rather denied relief in the ultimate exercise of discretion.

We lack jurisdiction to review the agency’s determination that Perez-Villalpando did not warrant cancellation of removal as a matter of discretion. See 8 U.S.C. § 1252(a)(2)(B)© (the court lacks jurisdiction to review any judgment regarding the discretionary denial of relief under 8 U.S.C. § 1229b); see also Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir.2006) (explaining “the REAL ID Act does not restore [ ] jurisdiction [where the petitioner] does not argue that the BIA’s discretionary denial was unconstitutional or unlawful.”).

Further, we note that the agency may look to evidence outside the record of conviction to determine whether discretion should be favorably exercised. Cf. Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.2004). Perez-Villalpando’s due process argument is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.2003). PETITION FOR REVIEW DISMISSED in part and DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.