Eleuterio Vasquez v Holder , 407 F. App'x 188 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS DEC 28 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
ELEUTERIO REYES VASÏUEZ, No. 08-71733
Petitioner, Agency No. A096-061-860
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
The memorandum disposition filed on July 30, 2010, is withdrawn. An
amended memorandum disposition is being filed concurrently with this order.
Reyes Vasquez's petition for panel rehearing is denied.
FILED
NOT FOR PUBLICATION DEC 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ELEUTERIO REYES VASÏUEZ, No. 08-71733
Petitioner, Agency No. A096-061-860
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Eleuterio Reyes Vasquez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals' ('BIA') order denying his motion to
reopen. We have jurisdiction under 8 U.S.C. y 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003), and we deny the petition for review.
The BIA did not abuse its discretion by denying Reyes Vasquez's motion to
reopen, where the BIA considered the new evidence of his United States citizen
daughter's mental health condition and acted within its broad discretion in
determining that the evidence was insufficient to warrant reopening. See Singh v.
INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (BIA's denial of a motion to reopen shall
be reversed only if it is 'arbitrary, irrational or contrary to law.')
To the extent Reyes Vasquez contends that the BIA failed to consider some
or all of the evidence he submitted with the motion to reopen, he has not overcome
the presumption that the BIA did review the record. See Franco-Rosendo v.
Gonzales, 454 F.3d 965, 966 (9th Cir. 2006).
We cannot consider the new information set forth in Reyes Vasquez's brief
regarding 1) the fact that his children now live with him rather than with their
mothers, 2) his disability, or 3) Dayana's diagnosis, because that information was
not before the BIA when it denied Reyes Vasquez's motion to reopen. See
8 U.S.C. y 1252(b)(4)(A). Our decision, however, does not preclude Reyes
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Vasquez from presenting that new information to the BIA, and requesting it to
reopen proceedings sua sponte pursuant to€8 C.F.R. y 1003.2(a).
PETITION FOR REVIEW DENIED.
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