Constantino Hernandez-Hernande v. Eric Holder, Jr.

MEMORANDUM

Constantino Hernandez-Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Ap peals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the BIA’s denial of a motion to reopen, Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010), and we deny the petition for review.

The BIA did not abuse its discretion in denying Hernandez-Hernandez’s motion to reopen to submit evidence of his indigenous heritage because he failed to demonstrate that the evidence was previously unavailable, given that Hernandez-Hernandez was aware that he was indigenous at the time of his hearing. See 8 C.F.R. § 1003.2 (c)(1); Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir.2007) (“If [the new evidence] was available or capable of being discovered at [the time of the movant’s hearing], it cannot provide a basis for reopening.”).

The BIA also did not abuse its discretion in denying Hernandez-Hernandez’s motion to reopen on the ground that the hardship evidence he submitted was insufficient to establish prima facie eligibility for cancellation of removal. See Garcia, 621 F.3d at…