Gerardo Brito-Barrientos v. Loretta E. Lynch

                                                                            FILED
                             NOT FOR PUBLICATION                            SEP 02 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GERARDO BRITO-BARRIENTOS,                        No. 13-72707

               Petitioner,                       Agency No. A087-451-177

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Gerardo Brito-Barrientos, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for cancellation of

removal, and denying his motion to remand. We have jurisdiction under 8 U.S.C.


          *
             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).
§ 1252. We review for abuse of discretion the denial of a motion to remand.

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny the petition

for review.

      In his opening brief, Brito-Barrientos does not raise, and therefore waives,

any challenge to the agency’s hardship determination with respect to his initial

claim for cancellation of removal. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th

Cir. 2010) (a petitioner waives an issue by failing to raise it in the opening brief).

      The BIA did not abuse its discretion in denying Brito-Barrientos’ motion to

remand with regard to cancellation of removal, where he failed to establish that the

evidence submitted was previously unavailable. See 8 C.F.R. § 1003.2(c)(1);

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

      The BIA also did not abuse its discretion in denying Brito-Barrientos’

motion to remand with regard to withholding of removal and Convention Against

Torture relief, where he failed to establish that the evidence submitted was either

previously unavailable or showed a material change since his last hearing. See 8

C.F.R. § 1003.2(c)(1); Najmabadi, 597 F.3d at 986.

      PETITION FOR REVIEW DENIED.




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