PONCIANO ALBA-GUTIERREZ V. ERIC HOLDER, JR., No. 10-71230 (9th Cir. 2014)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 21 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS PONCIANO ALBA-GUTIERREZ, No. 10-71230 Agency No. A092-177-378 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 18, 2014** San Francisco, California Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL, Senior District Judge.*** Ponciano Alba-Gutierrez (Alba) petitions for review of the Board of Immigration Appeals’ (BIA) order, which dismissed his appeal of an immigration * 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). *** The Honorable Wiley Y. Daniel, Senior District Judge for the U.S. District Court for Colorado, sitting by designation. judge’s denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a). Alba’s claim that the BIA violated the Equal Protection Clause in relying on his disability as a basis for denying cancellation of removal is not colorable. Alba failed to identify similarly situated individuals who were treated differently, and the government had a rational reason for denying relief to Alba. Accordingly, we lack jurisdiction to consider this claim. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009); see also Coronado v. Holder, 759 F.3d 977, 987–88 (9th Cir. 2014). Alba did not cite the Rehabilitation Act of 1973 in his arguments to the BIA or otherwise indicate that he was making a claim under 29 U.S.C. § 794. Because he did not exhaust this claim, we lack jurisdiction to consider it. See Young v. Holder, 697 F.3d 976, 982 (9th Cir. 2012). Finally, we lack jurisdiction to consider whether the BIA erred when it weighed the evidence underlying its discretionary determination. See MendezCastro, 552 F.3d at 979. Our review here is limited to legal and constitutional errors, see 8 U.S.C. § 1252(a)(2)(D), and Alba does not identify any legal error committed by the BIA in its review of the record. PETITION DENIED. 2

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