Bernardo Morales Guadarrama, et al v. Eric H. Holder Jr., No. 08-75115 (9th Cir. 2011)
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FILED JAN 25 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT BERNARDO MORALES GUADARRAMA; YOLANDA MORALES, No. 08-75115 Agency Nos. A071-632-165 A095-300-261 Petitioners, MEMORANDUM * v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Bernardo Morales Guadarrama and Yolanda Morales, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals ( BIA ) order denying their motion to reopen. Our jurisdiction is governed by 8 U.S.C. * 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). § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo due process claims. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying petitioners motion to reopen where petitioners failed to demonstrate that evidence of Morales Guadarrama s medical conditions was previously unavailable. See 8 C.F.R. § 1003.2(c); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063-64 (9th Cir. 2008). The evidence petitioners presented regarding their son s psychological condition 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 was insufficient to establish a prima facie case of hardship. See id. at 601. Petitioners contention that the BIA failed to consider evidence of hardship to their U.S. citizen daughter is not supported by the record. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 08-75115 3 08-75115
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