Lionel Martinez 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NOT FOR PUBLICATION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
LIONEL MARTINEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-70769
Agency No. A095-583-185
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Lionel Martinez, a native and citizen of Mexico, petitions for review of the
decision of the Board of Immigration Appeals denying his motion to reopen the
underlying denial of his application for cancellation of removal which was based
FILED
SEP 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-70769 2
on his failure to establish the requisite hardship to his United States citizen
children.
Martinez introduced new evidence of hardship consisting of an affidavit
from the mother of his United States citizen children stating that the children
would remain in the United States instead of moving to Mexico with petitioner,
and this separation of the family would constitute hardship. We conclude that the
BIA properly considered the new evidence offered by Martinez, and acted within
its broad discretion in determining that the evidence did not establish extreme
hardship, and was insufficient to warrant reopening. See Singh v. INS, 295 F.3d
1037, 1039 (9th Cir. 2000) (the BIA’s denial of a motion to reopen shall be
reversed only if it is “arbitrary, irrational, or contrary to law”).
Martinez also introduced evidence with his motion to reopen concerning the
hardship caused by his daughter’s eczema. This hardship evidence was previously
raised and rejected before the agency, and we lack jurisdiction to review this
discretionary determination. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th
Cir. 2006) (§ 1252(a)(2)(B)(i) bars jurisdiction when question presented in motion
to reopen is essentially the same hardship evidence ground originally decided).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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