Alejandro-Buenrostro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. JESUS ALEJANDRO-BUENROSTRO, No. 22-1034
Agency No.
Petitioner, A070-863-019
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2023**
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
J. Jesus Alejandro-Buenrostro, a citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (BIA) denial of his motion to reopen
cancellation of removal proceedings.
*
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).
We have jurisdiction under 8 U.S.C. § 1252, and review for abuse of
discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017); Fernandez
v. Gonzales, 439 F.3d 592, 601–03 (9th Cir. 2006). We deny the petition.
1. “Aliens who seek to remand or reopen proceedings to pursue relief bear
a heavy burden” of proof. Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008)
(internal quotation marks omitted). “The [BIA] has discretion to deny a motion
to reopen even if the party moving has made out a prima facie case for relief.” 8
C.F.R. § 1003.2(a).
Alejandro-Buenrostro filed a motion to reopen based on alleged
exceptional circumstances arising from his role as a father and provider to U.S.
born children. The BIA denied the motion, concluding the new evidence did not
suggest hardship “substantially different from, or beyond, that which would
normally be expected from the deportation of an alien with close family members
here.” Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). The
BIA also noted it already considered the birth of Alejandro-Buenrostro’s first
child in its initial decision.
The BIA reasonably concluded that Alejandro-Buenrostro failed to
substantiate an exceptional or extremely unusual hardship to a qualifying relative.
See 8 U.S.C. § 1229b(b)(1)(D). The new evidence accompanying the motion to
reopen only confirmed the birth of one son and the pregnancy of his wife. As the
BIA pointed out, Alejandro-Buenrostro does not provide any evidence of health
concerns for his children or other issues that would cause exceptional and unusual
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hardship. Instead, Alejandro-Buenrostro makes general claims about the level of
danger, quality of education, and availability of work in Mexico. This is not
enough to sustain his “heavy burden.” Shin, 547 F.3d at 1025. The BIA did not
abuse its discretion by denying Alejandro-Buenrostro’s motion to reopen.
2. Alejandro-Buenrostro also alleges that his due process rights were
violated but provides no further explanation or support for the claim. See Lata v.
INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding the petitioner must
demonstrate error and substantial prejudice to prevail on a due process claim).
The record shows that the BIA conducted an individualized analysis and
explained why Alejandro-Buenrostro failed to meet the requirements for relief.
See Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010) (holding the BIA
did not abuse its discretion because it “adequately considered [the petitioner’s]
evidence and sufficiently announced its decision”). Alejandro-Buenrostro’s due
process claim fails.
DENIED.
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