FILED
NOT FOR PUBLICATION OCT 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELOIDA CRUZ AVALOS, a.k.a. Elodia No. 08-73600
Cruz Avalos,
Agency No. A095-197-241
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Eloida Cruz Avalos, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS,
*
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).
321 F.3d 889, 894 (9th Cir. 2003), and we dismiss in part and deny in part the
petition for review.
We lack jurisdiction to review the agency’s discretionary determination that
Cruz Avalos failed to show exceptional and extremely unusual hardship to a
qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005).
The BIA did not abuse its discretion by denying Cruz Avalos’ motion to
reopen as to cancellation of removal because the motion failed to set forth any new
facts or present any new evidence to demonstrate the requisite hardship. See 8
C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall state the new facts
that will be proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material”).
In her opening brief, Cruz Avalos fails to address, and therefore has waived
any challenge to, the BIA’s determination that her claim of hardship to her younger
daughter is moot. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996).
The BIA did not abuse its discretion by denying Cruz Avalos’ motion to
reopen to apply for asylum, withholding of removal, and relief under the
Convention Against Torture because the BIA considered the evidence she
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submitted 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 if it is “arbitrary,
irrational, or contrary to law”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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