Leyva v. Gonzales

158 F. App'x 865

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2005
• Docket: No. 04-72426
• Status: Published

Opinion

MEMORANDUM

**

Diosdado Rodriguez Leyva, proceeding pro se, petitions this court for review of the Board of Immigration Appeals’ (“BIA”) April 15, 2004, denial of his motion to reopen the BIA’s decision affirming an immigration judge’s denial of his cancellation of removal application. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004), we deny the petition in part and dismiss it in part.

The BIA did not abuse its discretion in denying Rodriguez Leyva’s motion to reopen. Athough Rodriguez Leyva presented evidence that he had married a legal permanent resident after the BIA’s denial of his cancellation of removal application, he made no contention whatsoever of exceptional and extremely unusual hardship to his new wife. He therefore did not prove prima facie eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1); Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003); see also Azanor, 364 F.3d at 1023 (holding that the BIA did not abuse its discretion by denying a motion to reopen that did not state a prima facie case for ineffective assistance of counsel).

We lack jurisdiction to consider Rodriguez Leyva’s newly raised contention that his new wife will suffer exceptional and extremely unusual hardship based on her pregnancy because he did not present this contention to the BIA. See Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir. 2001).

PETITION DENIED IN PART, DISMISSED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.