Rostro v. Ashcroft

MEMORANDUM *** Jorge and Guillermina Rostro, husband and wife, appeal the district court’s judgment denying their petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a). We review de novo, Zitto v. Crabtree, 185 F.3d 930, 931 (9th Cir.1999) (per curiam), and we affirm. The Rostros’ contentions about the retroactive application of the stop-time rule have been rejected by this court in Ram v. INS, 243 F.3d 510, 516-17 (9th Cir.2001). The district court did not err by rejecting as baseless the Rostros’ claim that the Board of Immigration Appeals (“BIA”) violated their due process rights by relying upon “stale” testimony from the Immigration Judge’s hearing because the proceeding was not fundamentally unfair. See Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). The Rostros raise for the first time on appeal the contention that they are prima facie eligible for suspension of deportation, and we decline to consider it. See Woods v. Saturn Distrib. Corp., 78 F.3d 424, 430 (9th Cir.1996). Because none of the Rostros’ constitutional claims has colorable merit, this court would not have jurisdiction to review them in a petition for review from the BIA’s order. See Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir.1999). Therefore, we decline [652] to exercise our discretion to transfer the habeas petition to this court as a petition for review. Cf. Castro-Cortez v. INS, 239 F.3d 1037, 1046-47 (9th Cir.2001) (transferring 28 U.S.C. § 2241 petition to this court as a petition for review because the case met all conditions of the transfer statute). AFFIRMED. Footnotes [***] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.