                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 03 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MIGUEL MALDONADO and                             No. 10-70770
ESPERANZA FLORES,
                                                 Agency Nos. A097-877-608
              Petitioners,                                   A099-898-524

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                             Submitted April 20, 2011 **


Before: RYMER, THOMAS, and PAEZ, Circuit Judges.

       Miguel Maldonado and Esperanza Flores, natives and citizens of Mexico.

petition pro se for review of the decision of the Board of Immigration Appeals,

denying their motion to reconsider or reopen the underlying denial of their


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for cancellation of removal, which was based on petitioners’ failure to

establish the requisite hardship to their United States citizen children.

      Petitioners contend that the BIA failed to consider all the evidence submitted

with their motion to reopen, and failed to conduct a minimal review. Petitioners’

argument lacks merit, however, because petitioners presented no evidence with

their motion to reopen. See INS v. Abudu, 485 U.S. 94, 104 (1988) (a movant must

introduce previously unavailable, material evidence with the motion to warrant

reopening); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003)

(arguments are not evidence). Petitioners’ contention - that the BIA’s denial of

their motion to reopen violated their United States citizen children’s substantive

due process rights by forcing petitioners to terminate their relationship with their

children - is similarly without merit. See Munoz v. Ashcroft, 339 F.3d 950, 954

(9th Cir. 2003).

      We lack jurisdiction to consider petitioners’ challenges to the BIA’s

underlying discretionary determination that petitioners failed to establish

exceptional and extremely unusual hardship to their United States citizen children.

See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003). We also lack

jurisdiction to consider petitioners’ request that the case be reopened sua sponte.




                                           2                                    10-70770
See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) (this court lacks

jurisdiction to review the agency’s use of its sua sponte authority).

       We conclude that the BIA acted within its broad discretion in denying

petitioners’ motion to reopen or reconsider. See Singh v. INS, 295 F.3d 1037, 1039

(9th Cir. 2002) (the BIA’s denial of a motion to reopen shall be reversed only if it

is “arbitrary, irrational or contrary to law”).

       PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN

PART.




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