Gustavo Chairez v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO CHAIREZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-71065
Agency No. A095-181-281
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012**
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Gustavo Chairez, a native and citizen of Mexico, petitions pro se for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d
FILED
APR 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-71065 2
777, 782 (9th Cir. 2003), and we deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Chairez’s motion to reopen
because the BIA considered the evidence submitted and acted within its broad
discretion in determining Chairez did not show prima facie eligibility for relief
under the Convention Against Torture. See INS v. Abudu, 485 U.S. 94, 104-05
(1988) (the BIA may deny a motion to reopen for failure to establish a prima facie
case for the underlying relief sought); see also Singh v. INS, 295 F.3d 1037, 1039
(9th Cir. 2002) (the BIA’s denial of a motion to reopen shall be reversed only if it
is “arbitrary, irrational, or contrary to law”).
We lack jurisdiction to review the BIA’s denial of Chairez’s motion to
reopen based on further evidence of hardship to Chairez’s son. See Fernandez v.
Gonzales, 439 F.3d 592, 599-603 (9th Cir. 2006) (explaining that
§ 1252(a)(2)(B)(i) bars jurisdiction when question presented in motion to reopen is
essentially the same hardship ground originally decided). We also lack jurisdiction
to review Chairez’s challenges to the agency’s initial denial of cancellation of
removal, because the petition for review is not timely as to that order. See Singh v.
INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

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08-71065 3
Finally, because the agency did not err, Chairez’s due process contentions
fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring agency error
for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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