This case is not covered by Casetext's citator
United States Court of Appeals, Ninth CircuitDec 28, 2007
261 Fed. Appx. 974 (9th Cir. 2007)

No. 06-71532.

Submitted December 20, 2007.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed December 28, 2007.

Noam Mendelson, Daly City, CA, for Petitioners.

Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Carol Federighi, Esq., Jonathan Robbins, Esq., DOJ-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. A95-413-882, A95-565-668.

Before GOODWIN, WALLACE, and HAWKINS, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Valentin Venancio Martinez and Ines Arango Ignacio petition for review of an order of the Board of Immigration Appeals ("BIA") denying their motion to reopen removal proceedings. We dismiss the petition for review.

The evidence petitioners presented with their motion to reopen concerned the same basic hardship grounds as their 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 (holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars this court from reviewing the denial of a motion to reopen "where the question presented is essentially the same discretionary [hardship] issue originally decided.").

Our conclusion that we lack jurisdiction to review the BIA's determination that petitioners did not make out a prima facie case of hardship forecloses their argument that the BIA denied them due process by failing to address the entirety of the evidence submitted with the motion to reopen. See Fernandez, 439 F.3d at 603-04.