Garcia Serrano v. Holder

FILED
NOT FOR PUBLICATION FEB 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSE LUIS GARCIA SERRANO; No. 07-73696
MARGARITA VILLA; et al.,
Agency Nos. A096-133-399
Petitioners, A096-133-398
A096-133-397
v. A096-133-396

ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.

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

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

Jose Luis Garcia Serrano, his wife, Margarita Villa, and their daughters,

natives and citizens of Mexico, petition for review of an order of the Board of

Immigration Appeals (“BIA”) denying their motion to reopen removal

*
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).

AR/Research
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence findings of fact regarding counsel’s performance, Lin v.

Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004), we review for abuse of discretion

the BIA’s denial of a motion to reopen, and we review de novo claims of due

process violations in removal proceedings, Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We dismiss in part and deny in part the petition for review.

The evidence of the psychologist’s 2007 report regarding Garcia’s son’s

educational and psychological progress that Garcia presented with his motion to

reopen concerned the same basic hardship grounds as his application for

cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th

Cir. 2006). We therefore lack jurisdiction to review the BIA’s discretionary

determination that the evidence would not alter its prior discretionary

determination that he failed to establish the requisite hardship. See id. at 600

(holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars this court from reviewing the denial

of a motion to reopen where “the only question presented is whether [the] new

evidence altered the prior, underlying discretionary determination that [the

petitioner] had not met the hardship standard.”) (internal quotations and brackets

omitted).

AR/Research 2 07-73696
 We also lack jurisdiction to review any challenge to the immigration judge’s

denial of relief to Garcia’s two daughters because Garcia failed to raise any such

challenge before the BIA and thereby failed to exhaust his administrative remedies.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction

to review contentions not raised before the agency).

Substantial evidence supports the BIA’s conclusion that Garcia did not

establish that prior counsel’s performance “was so inadequate that it may have

affected the outcome of the proceedings.” Iturribarria v. INS, 321 F.3d 889, 899-

90 (9th Cir. 2003) (internal quotation omitted). The BIA therefore did not abuse

its discretion by denying the motion to reopen. 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.

AR/Research 3 07-73696