Hernandez v. Gonzales

MEMORANDUM ** Rosalia Montes Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen removal proceedings. We review for abuse of discretion the denial of a motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review. To the extent the evidence regarding Hernandez’s third child can be considered “new,” the BIA did not abuse its discretion by denying the motion to reopen, because the BIA considered the evidence of possible developmental problems and acted within its broad discretion in determining that it did not constitute prima facie evidence of hardship. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”); see also Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.2002) (upholding denial of motion to reopen where alien’s assertions in affidavit did not definitively establish relief warranted). PETITION FOR REVIEW DENIED. ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.