Opinion
Nos. 05-74413, 06-70054.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 24, 2007.
Vargas Associates, Alhambra, CA, for Petitioners.
CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Aviva L. Poczter, Esq., Ari Nazarov, Esq., U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A96-059-364, A96-059-365.
Before: PREGERSON, REINHARDT, and TASHIMA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In these consolidated petitions for review, Luis Lomeli Vera and Edaliht Mendoza Lopez, natives and citizens of Mexico, seek review of the Board of Immigration Appeals' ("BIA") June 27, 2005 order summarily affirming an immigration judge's ("IJ") decision denying their application for cancellation of removal and the BIA's December 2, 2005 order denying their motion to reopen. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We dismiss the petition for review in No. 05-74413 and we grant the petition for review in No. 06-70054.
Petitioners concede that this court lacks jurisdiction to review the IJ's discretionary determination that they failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003).
The BIA abused its discretion when it failed to reopen proceedings despite new and material evidence regarding a serious health condition afflicting petitioners' United States citizen son. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003) (holding reopening warranted "where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.") (quoting In re S-V-, 22 I. N. Dec. 1306 (BIA 2000)).
PETITION FOR REVIEW in No. 05-74413 DISMISSED. PETITION FOR REVIEW in No. 06-70054 GRANTED; REMANDED.