                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            AUG 13 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

FERNANDO GONZALEZ NERIS and                      No. 05-73739
JUANA MARIA MANJARREZ
QUINTERO,                                        Agency Nos. A079-592-800
                                                             A079-502-801
              Petitioners,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


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

                      Argued and Submitted August 9, 2010
                            San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       Fernando Gonzalez Neris and Juana Manjarrez Quintero (collectively,

“Petitioners”) petition for review of the Board of Immigration Appeals’ (“BIA”)




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision denying their motion to reopen their removal proceedings. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

      1. We determine our own jurisdiction de novo. Luu-Le v. INS, 224 F.3d

911, 914 (9th Cir. 2000). The BIA may grant a motion to reopen where the

movant offers new, material evidence that could not have been discovered or

presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1). These requirements

of 8 C.F.R. § 1003.2(c)(1) are judicially reviewable. See Kucana v. Holder, 130 S.

Ct. 827, 838-39 (2010); Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.

2006). Here, we have jurisdiction to review the BIA’s denial of a motion to reopen

because the BIA denied Petitioners’ motion to reopen for failure to satisfy 8 C.F.R.

§ 1003.2(c)(1). Id.

      2. The BIA may grant a motion to reopen where it presents material

evidence that “was not available and could not have been discovered or presented

at the former hearing.” INS v. Abudu, 485 U.S. 94, 98 n.2 (1988); 8 C.F.R. §

1003.2(c)(1). We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). Here, each of

Petitioners’ three supporting pieces of evidence could have been discovered and

presented at their initial removal hearing. First, Petitioners’ medical report stating

that their son’s asthma and anemia “interact synergistically” against him re-


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characterizes his preexisting medical conditions, which were before the IJ and BIA

in the former proceeding. Cf. Sida v. INS, 665 F.2d 851, 853 (9th Cir. 1981).

Second, Petitioners’ medical report concerning their daughter reiterates her prior

asthma diagnosis and history of childhood anemia and pneumonia, all of which

were presented in the former proceeding. Finally, Petitioners’ declaration in

support of their motion to reopen is substantially similar to their declaration

supporting their original cancellation application. We conclude that the BIA did

not abuse its discretion in denying the motion to reopen.

      Accordingly, the petition for review is DENIED.




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