                                                                            FILED
                              NOT FOR PUBLICATION                            MAR 04 2010

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




                               FOR THE NINTH CIRCUIT



 JOSE REYES; et al.,                               No. 08-72092

               Petitioners,                        Agency Nos. A095-450-367
                                                              A095-450-368
   v.                                                         A095-450-369
                                                              A095-450-370
 ERIC H. HOLDER Jr., Attorney General,                        A095-450-371
                                                              A095-450-372
               Respondent.

                                                   MEMORANDUM *



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

                              Submitted February 16, 2010 **


Before: FERNANDEZ, GOULD and M. SMITH, Circuit Judges.

        Jose and Caridad Reyes, husband and wife, and their children Adrian Reyes,

Araceli Reyes Galan, Adriana Estefania Reyes Galan, and Karla Victoria Reyes

         *
             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).

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Galan, natives and citizens of Mexico, petition pro se for review of the decision of

the Board of Immigration Appeals denying their motion to reopen the underlying

denial of their application for cancellation of removal based on their failure to

establish the requisite hardship to their qualifying relatives.

       Petitioners contend that the BIA erred in denying their motion to reopen

because they are entitled to relief under the Convention Against Torture (“CAT”)

based on changed country conditions in Mexico, and because they presented

sufficient new evidence of hardship to support their claim for cancellation.

       The evidence of hardship arising from the educational difficulties of

petitioners’ United States citizen children concerned the same basic hardship

ground as their initial application for cancellation of removal. We therefore lack

jurisdiction to review the BIA's discretionary determination that the evidence was

insufficient to establish a prima facie case of hardship. See Fernandez v. Gonzales,

439 F.3d 592, 601-03 (9th Cir. 2006). Petitioners' claim for protection under CAT

failed to present evidence of changed country conditions in Mexico that were

particular to petitioners and their circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii).

Because petitioners failed to meet their burden of establishing a prima facie CAT

claim to support reopening, the BIA did not abuse its discretion in denying the

motion.


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       Petitioners alleged that the qualifying relative provision of 8 U.S.C. §

1229b(b)(1)(D) violates the Equal Protection Clause because there is no rational

basis for distinguishing between aliens who have qualifying relatives and those

who do not for purposes of cancellation of removal relief. Petitioners’ challenge to

the constitutionality of the statute is foreclosed. See Vasquez-Zavala v. Ashcroft,

324 F.3d 1105, 1108 (9th Cir. 2003) (holding that placing aliens in removal, rather

than deportation, proceedings does not by itself amount to a due process violation);

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir. 2002) (no equal

protection violation arising from placing aliens in removal rather than deportation

proceedings).

       PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.




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