FILED
NOT FOR PUBLICATION APR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAVIER HERNANDEZ-SALAZAR, Nos. 10-71107
11-70533
Petitioner,
Agency No. A098-269-546
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted April 16, 2013 **
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
In these consolidated petitions for review, Javier Hernandez-Salazar, a
native and citizen of Mexico, petitions for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s
decision denying his application for cancellation of removal, and denying his
*
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).
motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, and review de novo questions
of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We
dismiss the petition for review in 10-71107, and dismiss in part and deny in part
the petition for review in 11-70533.
We lack jurisdiction to review the agency’s discretionary determination that
Hernandez-Salazar failed to show exceptional and extremely unusual hardship to
his qualifying relatives. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th
Cir. 2009). Hernandez-Salazar’s contention that factual errors infected the
proceedings with unfairness is not supported by the record and does not present a
colorable claim that invokes our jurisdiction. See id.
We lack jurisdiction to review Hernandez-Salazar’s motion to reopen to the
extent it concerns the same basic hardship grounds as his original application for
cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.
2006) (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)).
2 10-71107, 11-70533
To the extent Hernandez-Salazar presented non-cumulative evidence of
hardship to his son as a result of a learning disability and/or psychological disorder
in his motion to reopen, the BIA did not abuse its discretion in denying the motion
for failure to establish prima facie eligibility for cancellation of removal. See
Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (prima facie eligibility is
demonstrated by a showing that there is a reasonable likelihood that the statutory
requirements for relief have been satisfied). Hernandez-Salazar’s contention that
the BIA’s analysis relied on an incorrect standard in denying the motion is not
supported by the record.
In 10-71107: PETITION FOR REVIEW DISMISSED.
In 11-70533: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
3 10-71107, 11-70533