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 2010-08

Gonzalez Neris v. Holder ( 2010 )


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  •                              NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                            AUG 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDO GONZALEZ NERIS and                      No. 05-73739
JUANA MARIA MANJARREZ
QUINTERO,                                        Agency Nos. A079-592-800
A079-502-801
Petitioners,
v.                                             MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 9, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Fernando Gonzalez Neris and Juana Manjarrez Quintero (collectively,
“Petitioners”) petition for review of the Board of Immigration Appeals’ (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision denying their motion to reopen their removal proceedings. We have
jurisdiction pursuant to
    8 U.S.C. § 1252
    , and we deny the petition for review.
1. We determine our own jurisdiction de novo. Luu-Le v. INS,
    224 F.3d 911
    , 914 (9th Cir. 2000). The BIA may grant a motion to reopen where the
movant offers new, material evidence that could not have been discovered or
presented at the former hearing. See
    8 C.F.R. § 1003.2
    (c)(1). These requirements
of
    8 C.F.R. § 1003.2
    (c)(1) are judicially reviewable. See Kucana v. Holder,
    130 S. Ct. 827
    , 838-39 (2010); Fernandez v. Gonzales,
    439 F.3d 592
    , 601-03 (9th Cir.
2006). Here, we have jurisdiction to review the BIA’s denial of a motion to reopen
because the BIA denied Petitioners’ motion to reopen for failure to satisfy
    8 C.F.R. § 1003.2
    (c)(1).
    Id. 2
    . The BIA may grant a motion to reopen where it presents material
evidence that “was not available and could not have been discovered or presented
at the former hearing.” INS v. Abudu,
    485 U.S. 94
    , 98 n.2 (1988);
    8 C.F.R. § 1003.2
    (c)(1). We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Perez v. Mukasey,
    516 F.3d 770
    , 773 (9th Cir. 2008). Here, each of
Petitioners’ three supporting pieces of evidence could have been discovered and
presented at their initial removal hearing. First, Petitioners’ medical report stating
that their son’s asthma and anemia “interact synergistically” against him re-
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characterizes his preexisting medical conditions, which were before the IJ and BIA
in the former proceeding. Cf. Sida v. INS,
    665 F.2d 851
    , 853 (9th Cir. 1981).
Second, Petitioners’ medical report concerning their daughter reiterates her prior
asthma diagnosis and history of childhood anemia and pneumonia, all of which
were presented in the former proceeding. Finally, Petitioners’ declaration in
support of their motion to reopen is substantially similar to their declaration
supporting their original cancellation application. We conclude that the BIA did
not abuse its discretion in denying the motion to reopen.
Accordingly, the petition for review is DENIED.
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