FILED
NOT FOR PUBLICATION MAY 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIGUEL MALDONADO and No. 10-70770
ESPERANZA FLORES,
Agency Nos. A097-877-608
Petitioners, A099-898-524
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Miguel Maldonado and Esperanza Flores, natives and citizens of Mexico.
petition pro se for review of the decision of the Board of Immigration Appeals,
denying their motion to reconsider or reopen the underlying denial of their
*
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).
application for cancellation of removal, which was based on petitioners’ failure to
establish the requisite hardship to their United States citizen children.
Petitioners contend that the BIA failed to consider all the evidence submitted
with their motion to reopen, and failed to conduct a minimal review. Petitioners’
argument lacks merit, however, because petitioners presented no evidence with
their motion to reopen. See INS v. Abudu, 485 U.S. 94, 104 (1988) (a movant must
introduce previously unavailable, material evidence with the motion to warrant
reopening); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003)
(arguments are not evidence). Petitioners’ contention - that the BIA’s denial of
their motion to reopen violated their United States citizen children’s substantive
due process rights by forcing petitioners to terminate their relationship with their
children - is similarly without merit. See Munoz v. Ashcroft, 339 F.3d 950, 954
(9th Cir. 2003).
We lack jurisdiction to consider petitioners’ challenges to the BIA’s
underlying discretionary determination that petitioners failed to establish
exceptional and extremely unusual hardship to their United States citizen children.
See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003). We also lack
jurisdiction to consider petitioners’ request that the case be reopened sua sponte.
2 10-70770
See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) (this court lacks
jurisdiction to review the agency’s use of its sua sponte authority).
We conclude that the BIA acted within its broad discretion in denying
petitioners’ motion to reopen or reconsider. See Singh v. INS, 295 F.3d 1037, 1039
(9th Cir. 2002) (the BIA’s denial of a motion to reopen shall be reversed only if it
is “arbitrary, irrational or contrary to law”).
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
3 10-70770