                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JOSE ANTONIO CHAVARIN-ALDAZ,                    No.    18-70080
AKA Agustin Chavarin-Aldaz, AKA
Agustine E. Chavarin-Aldaz,                     Agency No. A089-852-966

                Petitioner,
                                                MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted June 4, 2020**
                                 Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

      Jose Antonio Chavarin-Aldaz, a citizen of Mexico, petitions for review of

the decision by the Board of Immigration Appeals (“BIA”) to deny his motion to

reopen. Chavarin-Aldaz originally sought cancellation of removal pursuant to 8



      *
             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).
U.S.C. § 1229b(b)(1) on the basis that his deportation to Mexico would result in

“exceptional and extremely unusual hardship” to his minor daughter, who is a

United States citizen. The immigration judge (“IJ”) denied him that relief and the

BIA dismissed his appeal.

      Chavarin-Aldaz subsequently filed a motion to reopen with the BIA, arguing

that “material changes” occurred since his hearing before the IJ. Specifically,

Chavarin-Aldaz (1) married a United States citizen, (2) had a baby with his new

wife, and (3) became the stepfather of his new wife’s 17-year-old son, a United

States citizen. Chavarin-Aldaz claimed that the hardship to those additional

qualifying relatives, coupled with the hardship to his minor daughter, sufficiently

showed that he is entitled to cancellation of removal under § 1229b(b)(1) and

warranted reopening his case. The BIA denied the motion, and Chavarin-Aldaz

then filed the instant petition for review. We deny the petition.

      1.     The Attorney General argues that we lack jurisdiction to review the

BIA’s denial of Chavarin-Aldaz’s motion to reopen because it implicates a

discretionary decision by the agency. Pursuant to 8 U.S.C. § 1252(a)(2)(B), we

lack jurisdiction to review the BIA’s denial of cancellation of removal under 8

U.S.C. § 1229b(b)(1) when the BIA makes the subjective and discretionary

determination that an individual failed to establish the “exceptional and extremely

unusual hardship” requirement. Romero-Torres v. Ashcroft, 327 F.3d 887, 888


                                          2
(9th Cir. 2003). However, this statutory bar does not apply to a denial of a motion

to reopen, where the evidence submitted to the BIA in connection with the motion

“addresses a hardship ground so distinct from that considered previously as to

make the motion to reopen a request for new relief, rather than a reconsideration of

a prior [discretionary] denial.” Fernandez v. Gonzales, 439 F.3d 592, 602–03 (9th

Cir. 2006). In that case, we have jurisdiction to review the BIA’s decision insofar

as it implicates evidence that is “non-cumulative and different in kind from the

evidence that [the petitioner] presented during [his or her] hearing.” Garcia v.

Holder, 621 F.3d 906, 911–12 (9th Cir. 2010). Here, Chavarin-Aldaz sought to

reopen his case based, at least in part, on evidence of hardship to new qualifying

relatives—a new basis for relief that did not exist at the time Chavarin-Aldaz

requested cancellation of removal. Therefore, we have jurisdiction to review the

BIA’s denial of his motion to reopen as far as it concerns that non-cumulative

basis.

         2.   The BIA did not err in denying Chavarin-Aldaz’s motion. We review

the BIA’s denial of a motion to reopen for abuse of discretion. Id. at 912. Under

this standard, “[t]he decision of the BIA should be left undisturbed unless it is

‘arbitrary, irrational, or contrary to law.’” He v. Gonzales, 501 F.3d 1128, 1131

(9th Cir. 2007) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)).




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      In support of the motion, Chavarin-Aldaz submitted a declaration from his

wife, who detailed in four short paragraphs how she and her children would suffer

financially and emotionally if Chavarin-Aldaz were deported. She stated, for

example, that Chavarin-Aldaz’s deportation “will affect [her] psychologically,”

that her children would be separated from their father, and that she had no other

close family to help her take care of the baby. She further explained that, as a full-

time clinic manager making $43,000 a year, she depends on Chavarin-Aldaz’s

financial support.

      In a reasoned decision, the BIA considered the evidence and found that

Chavarin-Aldaz failed to make a prima facie showing of exceptional and extremely

unusual hardship to the new qualifying relatives. “The ‘exceptional and extremely

unusual hardship’ standard is a very demanding one.” Garcia, 621 F.3d at 913; In

Re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001) (“[T]he hardship . . .

must be ‘substantially’ beyond the ordinary hardship that would be expected when

a close family member leaves this country[,] . . . [and relief] is to be limited to

‘truly exceptional’ situations.”); see In Re Andazola-Rivas, 23 I. & N. Dec. 319,

321–25 (BIA 2002) (denying cancellation to single mother who was the sole

support of her United States citizen children). Therefore, the BIA’s decision was

not arbitrary, irrational, or contrary to law.

      PETITION DENIED.


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