Hernandez v. Holder

315 F. App'x 628

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2009
• Docket: No. 06-72662
• Status: Published

Opinion

MEMORANDUM

**

Joel Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo due process claims, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the BIA’s discretionary determination that the evidence Hernandez presented with his motion to reopen was insufficient to establish a prima facie case of hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding that if “the BIA determines that a motion to reopen proceedings in which there has already been an unre-viewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief,” 8 U.S.C. § 1252(a)(2)(B)© bars this court from revisiting the merits in the absence of a new basis for relief).

To the extent Hernandez contends that the BIA violated due process by failing to consider some or all of the evidence he submitted with the motion to reopen, he has not overcome the presumption that the BIA did review the record. See id. at 603.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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