Lucero v. Mukasey

MEMORANDUM ** Petitioners seek review of a Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of their motion to reopen. We review the denial of motions to reopen for abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). The regulations provide that a motion to reopen must contain material evidence that was not previously available and could not have been discovered or presented at the former hearing. See 8 C.F.R. 1003.23(b)(3). Here, petitioners presented evidence in the form of a doctor’s letter that was identical in content to a letter that was presented to the IJ at the former hearing. We conclude that the BIA did not abuse its discretion by affirming the denial of the motion to reopen because the motion was based on evidence that was previously available. Respondent’s motion for summary disposition is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard). Accordingly, this petition for review is denied part. Petitioners’ contention that the IJ was biased was not previously raised before the BIA. We lack jurisdiction to consider unexhausted claims that could have been corrected by the BIA. See 8 U.S.C. § 1252 (d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, this petition for review is dismissed in part. The temporary stay of removal and voluntary departure confirmed by Ninth Circuit General Order 6.4(c) and Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), shall continue in effect until issuance of the mandate. All other pending motions are denied as moot. PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.