Martinez-Duran v. Mukasey

MEMORANDUM ** Francisca Martinez-Duran, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) order denying her application for cancellation of removal and denying her motion to reopen proceedings. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252 . We deny in part and dismiss in part the petition for review. Martinez-Duran has waived any challenge to the BIA’s dismissal of her direct appeal from the IJ’s decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (holding that issues not specifically raised and argued in a party’s opening brief are waived). Martinez-Duran’s evidence regarding the birth of her daughter, her son’s worsening asthma condition and her parents’ relocation to the United States from Mexico, presented with Martinez-Duran’s motion to reopen, concerned the same basic hardship grounds as her application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir. 2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that the evidence would not alter its prior discretionary determination that they failed to establish the requisite hardship. See id. at 600 . We deny Martinez-Duran’s motion to augment the record with evidence of the birth of her fourth child. See 8 U.S.C. § 1252 (b)(4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”). 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.