Nelly Hernandez Silva v. Eric H. Holder Jr. , 362 F. App'x 739 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NELLY HERNANDEZ SILVA; et al., No. 08-73241
Petitioners, Agency Nos. A095-302-146
A095-302-147
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted January 11, 2010
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Nelly Hernandez Silva and Alex Barcia Ramirez, natives and citizens of
Mexico, petition pro se for review of the decision of the Board of Immigration
Appeals denying their motion to reopen the underlying denial of their application
*
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).
jlf/Inventory
for cancellation of removal based on their failure to establish the requisite hardship
to their qualifying relatives.
Petitioners contend that the BIA erred in denying their motion to reopen
because they are entitled to relief under the Convention Against Torture (“CAT”)
based on changed country conditions in Mexico, and because they presented
sufficient new evidence of hardship to support their claim for cancellation.
The evidence of hardship arising from the male petitioner’s diabetes and the
United States citizen child’s education difficulties concerned the same basic
hardship ground as their initial application for cancellation of removal. 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
Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir. 2006). To the extent that
petitioners allege that conditions in Mexico constitute extreme hardship, the BIA
did not abuse its discretion in denying reopening based on its conclusion that the
petitioners did not show that similar evidence was previously unavailable. See 8
C.F.R. § 1003.2(c); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008).
In addition, petitioners have failed to establish a basis for reopening due to their
failure to provide sufficient evidence that changed country conditions in Mexico
jlf/Inventory 2 08-73241
establish a prima facie case for CAT relief. See Nuru v. Gonzales, 404 F.3d 1207,
1216 (9th Cir. 2005).
PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.
jlf/Inventory 3 08-73241