Alejandro-Buenrostro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2023
• Docket: 22-1034
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

J. JESUS ALEJANDRO-BUENROSTRO, No. 22-1034 Agency No. Petitioner, A070-863-019 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 6, 2023** Honolulu, Hawaii

Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.

J. Jesus Alejandro-Buenrostro, a citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (BIA) denial of his motion to reopen

cancellation of removal proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 8 U.S.C. § 1252, and review for abuse of

discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017); Fernandez

v. Gonzales, 439 F.3d 592, 601–03 (9th Cir. 2006). We deny the petition.

1. “Aliens who seek to remand or reopen proceedings to pursue relief bear

a heavy burden” of proof. Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008)

(internal quotation marks omitted). “The [BIA] has discretion to deny a motion

to reopen even if the party moving has made out a prima facie case for relief.” 8

C.F.R. § 1003.2(a).

Alejandro-Buenrostro filed a motion to reopen based on alleged

exceptional circumstances arising from his role as a father and provider to U.S.

born children. The BIA denied the motion, concluding the new evidence did not

suggest hardship “substantially different from, or beyond, that which would

normally be expected from the deportation of an alien with close family members

here.” Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). The

BIA also noted it already considered the birth of Alejandro-Buenrostro’s first

child in its initial decision.

The BIA reasonably concluded that Alejandro-Buenrostro failed to

substantiate an exceptional or extremely unusual hardship to a qualifying relative.

See 8 U.S.C. § 1229b(b)(1)(D). The new evidence accompanying the motion to

reopen only confirmed the birth of one son and the pregnancy of his wife. As the

BIA pointed out, Alejandro-Buenrostro does not provide any evidence of health

concerns for his children or other issues that would cause exceptional and unusual

2 hardship. Instead, Alejandro-Buenrostro makes general claims about the level of

danger, quality of education, and availability of work in Mexico. This is not

enough to sustain his “heavy burden.” Shin, 547 F.3d at 1025. The BIA did not

abuse its discretion by denying Alejandro-Buenrostro’s motion to reopen.

2. Alejandro-Buenrostro also alleges that his due process rights were

violated but provides no further explanation or support for the claim. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding the petitioner must

demonstrate error and substantial prejudice to prevail on a due process claim).

The record shows that the BIA conducted an individualized analysis and

explained why Alejandro-Buenrostro failed to meet the requirements for relief.

See Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010) (holding the BIA

did not abuse its discretion because it “adequately considered [the petitioner’s]

evidence and sufficiently announced its decision”). Alejandro-Buenrostro’s due

process claim fails.

DENIED.