09-4005-ag
Silva-Jimenez v. Holder


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY O RDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of
December, two thousand ten.

Present:
         JON O. NEWMAN,
         GUIDO CALABRESI,
         ROBERT A. KATZMANN,
               Circuit Judges,
________________________________________________

JAIME SILVA-JIMENEZ, also known as Jaine Jimenez,

            Petitioner,

                     v.                                 No. 09-4005-ag

ERIC H. HOLDER, U.S. ATTORNEY GENERAL,

         Respondent.
________________________________________________

 For Petitioner:                          EARL IAN LAIDLOW , New York, N.Y.


 For Respondent:                          GLEN T. JAEGER , Trial Attorney (Tony West,
                                          Assistant Attorney General, Lyle D. Jentzer, Senior
                                          Litigation Counsel, on the brief), Office of
                                          Immigration Litigation, U.S. Department of Justice,
                                          Washington, D.C.
       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the

petition for review is DENIED.

       Petitioner Jaime Silva-Jimenez, a Mexican national, seeks review of the August 27, 2009

order of the BIA denying his motion to reopen proceedings following its dismissal of petitioner’s

appeal from the denial of his application for cancellation of removal. In re Jaime Silva-Jimenez,

No. A097 531 035 (B.I.A. Aug. 27, 2009). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

       We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA,

413 F.3d 232, 233 (2d Cir. 2005) (per curiam). When the claims are merely factual, the BIA

exceeds its discretion “only in those limited circumstances” where its decision “(1) provides no

rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any

reasoning, or (4) contains only summary or conclusory statements.” Song Jin Wu v. INS, 436

F.3d 157, 161 (2d Cir. 2006). The BIA shall grant a motion to reopen only if “it appears to the

Board that evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

       Silva contends that the BIA erred in denying his motion, which was based on purportedly

new, material testimony from his wife and evidence pertaining to his son’s learning disability.

On review, we cannot conclude that the BIA abused its discretion in denying petitioner’s motion.

Although Silva and his wife were separated at the time of his hearing before the immigration

judge, after reviewing the record, we agree with the BIA’s conclusion that petitioner did not

establish that her testimony would provide information that could not have been presented at the


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prior hearing or that it would be new and material to his petition. We note that petitioner did not

present any evidence showing that petitioner’s son Brandon could not receive the requisite

special education services in Mexico.

       We have considered petitioner’s remaining arguments and find them to be without merit.

For the foregoing reasons, the petition for review is DENIED. Having completed our review, we

DISMISS the petitioner’s pending motion for a stay of removal as moot.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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