Saldivar-Guerrero v. Gonzales

139 F. App'x 854

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2005
• Docket: No. 04-72192
• Status: Published

Opinion

MEMORANDUM

**

Cipriano Saldivar-Guerrero, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance without opinion of an immigration judge’s (“IJ”) denial of his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002), we dismiss in part and deny in part the petition for review.

In his motion to reopen, SaldivarGuerrero sought to introduce new psychological evidence as to the hardship his son Bryan will suffer if Saldivar-Guerrero is removed to Mexico. The IJ did not abuse her discretion by denying the motion because Saldivar-Guerrero failed to establish that the evidence was previously unavailable or could not have been discovered and presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1). Saldivar-Guerrero was on notice that he had the burden of showing the requisite hardship to his U.S. citizen children, and in fact did present hardship evidence at his hearing. See INS v. Doherty, 502 U.S. 314, 326-28, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (holding that Attorney General had broad discretion to determine that proffered evidence could have been foreseen and anticipated at time of hearing).

Saldivar-Guerrero’s reliance on Sida v. INS, 665 F.2d 851 (9th Cir.1981) is misplaced. In Sida, the petitioner only discovered her child’s illness when it was triggered by a trip to Thailand after she had withdrawn her application for suspension of deportation. Id. at 853. Here, the potential consequences to Bryan if Saldivar-Guerrero takes him to Mexico could have been presented at the earlier hearing.

We lack jurisdiction to review SaldivarGuerrero’s contention that he did not receive a full and fair hearing because this is not a colorable due process claim. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001).

Saldivar-Guerrero’s remaining contentions are without merit.

PETITION FOR REVIEW DISMISSED in part; DENIED 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.