Patino-Rojas, et al v. Holder, No. 06-70086 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 26 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JESUS PATINO-ROJAS, Petitioner, No. 06-70086 Agency No. A095-406-724 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of Orders of the Board of Immigration Appeals Submitted October 19, 2010 ** Before: O SCANNLAIN, TALLMAN, and BEA, Circuit Judges. Jesus Patino-Rojas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) orders dismissing his appeal from an immigration judge s ( IJ ) removal order and denying his motion to reopen and * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen or reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and review de novo claims of due process violations in immigration proceedings, Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We dismiss in part and deny in part the petition for review. We lack jurisdiction to review the agency s discretionary determination that Patino-Rojas failed to show exceptional and extremely unusual hardship to a qualifying relative. See id. Patino-Rojas contention that the IJ violated due process by failing to admit Dr. Agorio s medical report is not supported by the record. Patino-Rojas contention that the IJ violated due process by failing to allow Dr. Agorio to testify telephonically is unavailing where Patino-Rojas has not shown that the testimony would not have been cumulative. Cf. Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir. 2004) (finding due process violation where there was no substitute for the excluded oral testimony). In addition, Patino-Rojas contention that the IJ was biased is not supported by the record. See Hassan v. INS, 927 F.2d 465, 469 (9th Cir. 1991) (the factual record adequately supported the denial of petitioner s relief application, and the IJ s conduct had no bearing on the outcome). 2 06-70086 The BIA did not abuse its discretion by denying Patino-Rojas motion to reopen because the BIA considered the evidence Patino-Rojas submitted and acted within its broad discretion in determining that the evidence was insufficient to establish prima facie eligibility for cancellation of removal. 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 Patino-Rojas motion to reconsider because the motion failed to identify any error of fact or law in the BIA s prior decision. See 8 C.F.R. § 1003.2(b)(i); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir. 2001) (en banc). Patino-Rojas remaining contention is unavailing. PETITION FOR REVIEW DISMISSED in part; DENIED in part. 3 06-70086
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