Avila-Cervantes v. Mukasey

MEMORANDUM ** Jorge Avila-Cervantes, 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 have jurisdiction pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. *766 The BIA did not abuse its discretion by denying the motion to reopen, where the BIA considered the evidence of Avila-Cervantes’ U.S. citizen son’s new, undiagnosed medical condition and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.8d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. HAWKINS, Circuit Judge, dissenting. I respectfully dissent. When Petitioner moved to re-open, the Department of Homeland Security did oppose a grant. Petitioner should be given an opportunity to present his new evidence.