                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            FEB 18 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

CARLOS ALFONSO SAJUAN OCHOA,                     No. 12-73621

              Petitioner,                        Agency No. A087-102-846

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.



CARLOS ALFONSO SAJUAN OCHOA,                     No. 13-70543

              Petitioner,                        Agency No. A087-102-846

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals
                          Submitted January 4, 2016**
                             San Francisco, California

        *
             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).
Before: WALLACE and O’SCANNLAIN, Circuit Judges and HUFF,*** District
Judge.

      Carlos Alfonso Sajuan Ochoa, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (Board) denial of a motion to reopen

his removal proceedings.1 We have jurisdiction under 8 U.S.C. § 1251(b), we

review for an abuse of discretion, see Minasyan v. Mukasey, 553 F.3d 1224, 1227

(9th Cir. 2009), and we deny the petition.

      Ochoa was convicted in state court on counts of theft and burglary. On this

appeal, Ochoa argues that some of his convictions were recently vacated, and thus

he no longer has convictions of crimes involving moral turpitude, rendering him

eligible for cancellation of removal. In support of the motion to reopen, Ochoa

submitted a charging document demonstrating that his state court conviction under

California Penal Code section 484 was vacated and amended to a charge under

California Penal Code section 415, disturbing the peace. Ochoa contends the



          ***
             The Honorable Marilyn L. Huff, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      1
         Ochoa has also filed a petition for review of the Board’s order dismissing
his appeal of the immigration judge’s denial of his application for asylum,
withholding of removal, and Convention Against Torture relief. But Ochoa has
waived any challenges to such order by failing to present any arguments regarding
it in his opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011).

                                             2                                13-70543
previous conviction was vacated due to a procedural error, and thus it may no

longer be considered in immigration proceedings. See Nath v. Gonzales, 467 F.3d

1185, 1189 (9th Cir. 2006).

      The government has the burden to establish that a conviction remains valid

for immigration purposes. Id. Even if we assume, without deciding, that the

conviction does not remain valid, the Board properly concluded that Ochoa did not

sufficiently demonstrate prima facie eligibility for relief from removal to warrant

reopening proceedings. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir.

2013).

      The petitioner must support a motion to reopen with new evidence and

establish a prima facie case for the underlying relief sought. Ordonez v. I.N.S., 345

F.3d 777, 784–5 (9th Cir. 2003). A prima facie case is established when the

evidence reveals a reasonable likelihood that the statutory requirements for relief

have been satisfied. Id. Ochoa did not present any evidence in his application for

cancellation of removal to show a reasonable likelihood that his removal would

result in exceptional and extremely unusual hardship to his spouse, parent, or child.

8 U.S.C. § 1229b(b)(1)(D); see Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.

2010).




                                          3                                    13-70543
      Ochoa’s brief argues that a showing of hardship is “a matter for the

immigration judge once proceedings are reopened.” But a motion to reopen is “the

proper way to introduce previously unavailable evidence,” Ordonez, 345 F.3d at

784, and the Board addressed Ochoa’s failure to make a prima facie showing of

extreme hardship in its denial order. As no evidence of hardship was previously

introduced and the record remains deficient, Ochoa has not established prima facie

eligibility for cancellation of removal.

      PETITION FOR REVIEW DENIED.




                                           4                                 13-70543
