Jose Reyes; 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).
HL/Inventory
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE REYES; et al.,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 08-72092
Agency Nos. A095-450-367
A095-450-368
A095-450-369
A095-450-370
A095-450-371
A095-450-372
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD and M. SMITH, Circuit Judges.
Jose and Caridad Reyes, husband and wife, and their children Adrian Reyes,
Araceli Reyes Galan, Adriana Estefania Reyes Galan, and Karla Victoria Reyes
FILED
MAR 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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HL/Inventory
Galan, natives and citizens of Mexico, petition pro se for review of the decision of
the Board of Immigration Appeals denying their motion to reopen the underlying
denial of their application for cancellation of removal based on their failure to
establish the requisite hardship to their qualifying relatives.
Petitioners contend that the BIA erred in denying their motion to reopen
because they are entitled to relief under the Convention Against Torture (“CAT”)
based on changed country conditions in Mexico, and because they presented
sufficient new evidence of hardship to support their claim for cancellation.
The evidence of hardship arising from the educational difficulties of
petitioners’ United States citizen children concerned the same basic hardship
ground as their initial application for cancellation of removal. We therefore lack
jurisdiction to review the BIA's discretionary determination that the evidence was
insufficient to establish a prima facie case of hardship. See Fernandez v. Gonzales,
439 F.3d 592, 601-03 (9th Cir. 2006). Petitioners' claim for protection under CAT
failed to present evidence of changed country conditions in Mexico that were
particular to petitioners and their circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii).
Because petitioners failed to meet their burden of establishing a prima facie CAT
claim to support reopening, the BIA did not abuse its discretion in denying the
motion.

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HL/Inventory
Petitioners alleged that the qualifying relative provision of 8 U.S.C. §
1229b(b)(1)(D) violates the Equal Protection Clause because there is no rational
basis for distinguishing between aliens who have qualifying relatives and those
who do not for purposes of cancellation of removal relief. Petitioners’ challenge to
the constitutionality of the statute is foreclosed. See Vasquez-Zavala v. Ashcroft,
324 F.3d 1105, 1108 (9th Cir. 2003) (holding that placing aliens in removal, rather
than deportation, proceedings does not by itself amount to a due process violation);
Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir. 2002) (no equal
protection violation arising from placing aliens in removal rather than deportation
proceedings).
PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.

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