Manuel CHICO-CABELLO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 234 F. App'x 498

MEMORANDUM Manuel Chico-Cabello, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We dismiss the petition for review. The evidence Chico-Cabello presented with his motion to reopen concerned the same basic hardship grounds as his application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that the evidence was insufficient to establish a prima facie case of hardship.

See id. at 601 (holding that if “the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief,” 8 U.S.C. § 1252(a)(2)(B)(

i) bars this court from revisiting the merits). Chico-Cabello’s contention that the BIA violated his due process rights by basing its decision on a stale record does not amount to a colorable constitutional claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[T]raditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”).

We lack jurisdiction to review the BIA’s underlying order affirming the immigration judge’s decision because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003). PETITION FOR REVIEW DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.