Mendoza v. Gonzales

MEMORANDUM ** Miguel Angel Carretero Mendoza and Dora Barcenas De Carretero, husband and wife and natives and citizens of Mexico, petition pro se for review of the decision of the Board of Immigration Appeals denying petitioners’ motion to reopen the underlying denial of their application for cancellation of removal. In the underlying decision, the immigration judge denied the application on the ground that petitioners failed to establish exceptional and extremely unusual hardship to their United States citizen children. In the motion to reopen, petitioners submitted additional evidence that one of their children had educational difficulties. The BIA denied the motion on the grounds that: the document submitted by petitioners was not previously unavailable; the additional evidence merely confirmed petitioner’s prior testimony; and petitioners did not establish the requisite exceptional and extremely unusual hardship. We retain jurisdiction to review the BIA’s determination that the new evidence was previously available, see Fernandez v. Gonzales, 439 F.3d 592 , 600 n. 7 (9th Cir.2006); but we conclude that the BIA did not abuse its discretion in denying petitioners’ motion to reopen proceedings on that ground. See 8 C.F.R. §§ 1003.2 (a) and (c); Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir.2005). We lack jurisdiction to review the BIA’s holding that the additional evidence failed to establish exceptional and extremely unusual hardship. Fernandez, 439 F.3d at 601 (“we lack jurisdiction to review the BIA’s denials of motions to reopen for failure to establish a prima facie case if a prior adverse discretionary determination was made by the agency” and the new evidence is directed at the same ground.) PETITION FOR REVIEW DENIED in part; and DISMISSED in part. 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.