Ortiz v. Gonzales

MEMORANDUM ** Mauricio Lopez Ortiz, his wife Camelia Cantu de Lopez, and their three children Zobeida, Ana Karina, and Jovanny Lopez Cantu (the “children”), all natives and citizen of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen cancellation of removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), we deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying the motion to reopen as to Lopez Ortiz because it considered the evidence presented regarding his child’s new medical condition and acted within its broad discretion in determining that it did not indicate her condition was severe enough to warrant reopening. 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.”). The BIA did not abuse its discretion in denying the motion to reopen with regard to Cantu de Lopez and the three children because the new medical evidence is not relevant to the BIA’s earlier determination that they failed to establish ten years of continuous physical presence. See 8 U.S.C. § 1229b(b)(l)(A). We do not consider petitioners’ remaining contentions regarding the BIA’s underlying decision of December 7, 2004, because the instant petition for review is not timely as to that decision. See Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir. 2005). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provid *512 ed by 9th Cir. R. 36-3.