FILED
NOT FOR PUBLICATION MAY 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONSTANTINO HERNANDEZ- No. 10-71837
HERNANDEZ,
Agency No. A077-175-911
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Constantino Hernandez-Hernandez, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen removal proceedings. 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 BIA’s denial of a motion to reopen,
Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010), and we deny the petition for
review.
The BIA did not abuse its discretion in denying Hernandez-Hernandez’s
motion to reopen to submit evidence of his indigenous heritage because he failed to
demonstrate that the evidence was previously unavailable, given that Hernandez-
Hernandez was aware that he was indigenous at the time of his hearing. See 8
C.F.R. § 1003.2(c)(1); Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (“If
[the new evidence] was available or capable of being discovered at [the time of the
movant’s hearing], it cannot provide a basis for reopening.”).
The BIA also did not abuse its discretion in denying Hernandez-Hernandez’s
motion to reopen on the ground that the hardship evidence he submitted was
insufficient to establish prima facie eligibility for cancellation of removal. See
Garcia, 621 F.3d at 912 (prima facie eligibility is demonstrated by a showing that
there is a reasonable likelihood that the statutory requirements for relief have been
satisfied); Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (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.
2 10-71837