Montalvo v. Gonzales

MEMORANDUM ** Petitioners Jose Rosario Gonzalez Montalvo, Martina De La Cruz Gonzalez, Eric Fernando Gonzalez De La Cruz, Pedro *688 Alberto Gonzalez De La Cruz, and Catalina Guadalupe Gonzalez De La Cruz petition the court for review of the Board of Immigration Appeals’ (“BIA”) decision denying their motion to reopen. Because petitioners’ motion to reopen did not include new facts to be proven at the reopened hearing and was not supported by affidavits or other documentary evidence, the BIA did not abuse its discretion in construing the motion as one to reconsider. See 8 C.F.R. § 1003.2 (c)(1). The BIA did not abuse its discretion in denying petitioners Jose Rosario Gonzalez Montalvo and Martina De La Cruz Gonzalez’s motion to reopen, because they failed to present new evidence of hardship to their United States citizen children. Accordingly, the petition for review is .dismissed as to petitioners Jose Rosario Gonzalez Montalvo and Martina De La Cruz Gonzalez, because they seek review of essentially the same discretionary issue originally decided by the BIA and because this court lacks jurisdiction to conduct such review. See Fernandez v. Gonzales, 439 F.3d 592 (9th Cir.2006). The BIA did not abuse its discretion in denying petitioners Eric Fernando Gonzalez De La Cruz, Pedro Alberto Gonzalez De La Cruz, and Catalina Guadalupe Gonzalez De La Cruz’s motion to reopen, because these petitioners failed to present evidence that they had qualifying relatives or were otherwise eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(A)(2). Accordingly, the petition for review is denied as to these petitioners. Petitioners have further failed to raise a colorable constitutional or legal claim over which this court may exercise jurisdiction. See, e.g., Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002); Ram v. INS, 243 F.3d 510, 517 (9th Cir.2001). Accordingly, respondent’s motion to dismiss in part and to summarily deny in part this petition for review is granted. See Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir.2001). All other pending motions are denied as moot. 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. PETITION FOR REVIEW DISMISSED in part; DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.