Jaime Duenas-Hernandez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME DUENAS-HERNANDEZ, No. 18-70906
Petitioner, Agency No. A087-991-568
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Jaime Duenas-Hernandez, a native and citizen of Mexico, petitions 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. Garcia v. Holder,
621 F.3d 906, 912-13 (9th Cir. 2010). We deny in part and dismiss in part the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition for review.
We lack jurisdiction to review Duenas-Hernandez’s contentions regarding
hardship to his United States citizen daughter, where the evidence is cumulative of
his previously denied application for cancellation of removal. See Fernandez v.
Gonzalez, 439 F.3d 592, 603 (9th Cir. 2006) (court lacks jurisdiction over a motion
to reopen where new evidence is cumulative of a previously considered
discretionary determination). The BIA did not abuse its discretion in denying
Duenas-Hernandez’s motion on the ground that the new evidence of his daughter’s
scoliosis was insufficient to establish prima facie eligibility for cancellation of
removal. See id. (court has jurisdiction to review the agency’s decision where “the
evidence submitted addresses a hardship ground so distinct from that considered
previously as to make the motion to reopen a request for new relief”).
To the extent Duenas-Hernandez challenges the BIA’s hardship
determination on direct appeal, we lack jurisdiction to consider that challenge,
where this petition is untimely as to that decision. See 8 U.S.C. § 1252(b)(1).
Finally, we lack jurisdiction to consider Duenas-Hernandez’s unexhausted
ineffective assistance of counsel claim, where he failed to raise the claim in the
order under review. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)
2 18-70906
(“We lack jurisdiction to review legal claims not presented in an alien’s
administrative proceedings before the BIA.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 18-70906