Constantino Hernandez-Hernande v. Eric Holder, Jr.

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NOT FOR PUBLICATION MAY 23 2012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