Miranda v. Holder , 382 F. App'x 657 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FERNANDO MIRANDA; TEODORA Nos. 08-73581
MIRANDA, 08-70491
Petitioners, Agency Nos. A075-758-099
A075–758-100
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
In these consolidated petitions for review, Fernando Miranda and Teodora
Miranda, natives and citizens of Mexico, petition pro se for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration
*
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).
judge’s (“IJ”) removal order and denying their motion to remand, as well as its
order denying their subsequent motion to reopen. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005), and review de
novo due process claims, Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.
2006). We dismiss in part and deny in part the petition for review in No. 08-
70491, and dismiss the petition for review in No. 08-73581.
We lack jurisdiction to review the BIA’s determination that the evidence of
hardship submitted with petitioners’ motion to remand was insufficient to establish
prima facie eligibility for relief. See id. at 601-02. Petitioners’ claim that the IJ
violated their due process rights by refusing to consider new hardship evidence on
remand fails in light of the BIA’s subsequent consideration of the evidence on
appeal. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (requiring
prejudice to prevail on a due process challenge).
The evidence petitioners presented with their motion to reopen concerned
the same basic hardship grounds as their application for cancellation of removal.
See Fernandez, 439 F.3d at 602-03. We therefore lack jurisdiction to review the
BIA’s determination that the evidence was insufficient to establish a prima facie
case of hardship. See id. at 601.
2 08-73581
In No. 08-70491: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
In No. 08-73581: PETITION FOR REVIEW DISMISSED.
3 08-73581