Opinion
No. 08-72471.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 17, 2009.
Lucio Contrera-Palma, pro se.
Maria Lina Cortez-Helacio, pro se.
Lisa Marie Arnold, Senior Litigation Counsel, OIL, DOJ — U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, CAC-District Counsel, Esquire, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A096-069-536, A096-069-537.
Before KLEINFELD, M. SMITH, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Lucio Contrera-Palma, and his wife, Maria Lina Cortez-Helacio, both natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals' ("BIA") order denying their 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, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004), and we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners' motion to reopen because they did not demonstrate prima facie eligibility for relief under the Convention Against Torture. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir. 2003) ("prima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen").
Because petitioners' evidence regarding educational hardship addressed the same hardship grounds previously considered by the agency in connection with the denial of cancellation of removal, we lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 600-02 (9th Cir. 2006). To the extent petitioners' motion to reopen raised criminal violence as a new basis for hardship, we conclude the BIA acted within its broad discretion in determining the evidence was insufficient to warrant reopening. See id. at 601-02; Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (The BIA's denial of a motion to reopen shall be reversed only if it is "arbitrary, irrational, or contrary to law.").
We lack jurisdiction to review petitioners' contention that they are members of a particular social group for purposes of establishing eligibility for asylum and withholding of removal, because this contention was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).