Barajas-Laurian v. Holder

314 F. App'x 940

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2009
• Docket: No. 06-74731
• Status: Published

Opinion

Judge FERNANDEZ would dismiss in part and deny in part the petition for review.

MEMORANDUM

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Alejandro Barajas-Laurian and Irma Alvarado-Lopez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying them motion to reopen. We dismiss in part and grant in part the petition for review and remand for further proceedings.

The evidence petitioners’ presented with their motion to reopen concerned the same basic hardship grounds as their application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that reopening is not warranted based on the evidence petitioners submitted. See id. at 600 (8 U.S.C. § 1252(a)(2)(B)® bars review of the denial of a motion to reopen “where the question presented is essentially the same discretionary [hardship] issue originally decided”).

With their motion to reopen, petitioners attached an order in which the BIA concluded that Alvarado-Lopez’ sister and brother-in-law had demonstrated the requisite hardship to qualify for cancellation of removal based on the same qualifying relatives present in this case. Petitioners contended in their motion that because the cases were practically identical they warranted the same result. As the BIA’s order on review does not explicitly address the prior decision raised by petitioners, we remand for the BIA to consider petitioners’ contention in the first instance. See generally INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW DISMISSED in part; GRANTED in part; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.