Ruben Guzman Perez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RUBEN GUZMAN PEREZ; MARTHA No. 09-73831
LOMELI BARBA,
Agency Nos. A095-304-136
Petitioners, A095-304-137
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted April 17, 2012
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Ruben Guzman Perez and Martha Lomeli Barba, natives and citizens of
Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”)
order dismissing their appeal from an immigration judge’s denial of their oral
*
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).
motions to continue proceedings, reopen proceedings based on new evidence, and
administratively close proceedings. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to continue,
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and review de novo claims
of due process, Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir. 2008).
We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying petitioners’ motion for a
continuance where petitioners failed to show good cause. See Ahmed, 569 F.3d at
1012; 8 C.F.R. § 1003.29.
Because petitioners did not describe or submit any evidence of new hardship
with their motion to reopen, the motion concerned the same basic hardship grounds
as their original application for cancellation of removal. We therefore lack
jurisdiction to review the agency’s 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) (if the agency “determines that a motion to reopen
proceedings in which there has already been an unreviewable discretionary
determination concerning a statutory prerequisite to relief does not make out a
prima facie case for that relief,” 8 U.S.C. § 1252(a)(2)(B)(i) bars this court from
revisiting the merits).
We also lack jurisdiction to review the agency’s decision not to
administratively close proceedings. See Diaz-Covarrubias v. Mukasey, 551 F.3d
1114, 1115 (9th Cir. 2009).
It follows that the BIA did not violate petitioners’ due process rights by
denying the motions. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.