Garcia Serrano v. Holder

MEMORANDUM

Jose Luis Garcia Serrano, his wife, Margarita Villa, and their daughters, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings. Our jurisdic tion is governed by 8 U.S.C. § 1252 . We review for substantial evidence findings of fact regarding counsel’s performance, Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004), we review for abuse of discretion the BIA’s denial of a motion to reopen, and we review de novo claims of due process violations in removal proceedings, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We dismiss in part and deny in part the petition for review.

The evidence of the psychologist’s 2007 report regarding Garcia’s son’s educational and psychological progress that Garcia presented with his motion to reopen concerned the same basic hardship grounds as his application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that the evidence would not alter its prior discretionary determination that he failed to…