                                                                           FILED
                               NOT FOR PUBLICATION                          JAN 19 2010

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




                               FOR THE NINTH CIRCUIT



 NELLY HERNANDEZ SILVA; et al.,                    No. 08-73241

                Petitioners,                       Agency Nos. A095-302-146
                                                              A095-302-147
    v.

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

                Respondent.



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

                                                            **
                               Submitted January 11, 2010


Before: BEEZER, TROTT, and BYBEE, Circuit Judges.

         Nelly Hernandez Silva and Alex Barcia Ramirez, 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

           *
             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).

jlf/Inventory
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 male petitioner’s diabetes and the

United States citizen child’s education difficulties 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). To the extent that

petitioners allege that conditions in Mexico constitute extreme hardship, the BIA

did not abuse its discretion in denying reopening based on its conclusion that the

petitioners did not show that similar evidence was previously unavailable. See 8

C.F.R. § 1003.2(c); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008).

In addition, petitioners have failed to establish a basis for reopening due to their

failure to provide sufficient evidence that changed country conditions in Mexico




jlf/Inventory                               2                                    08-73241
establish a prima facie case for CAT relief. See Nuru v. Gonzales, 404 F.3d 1207,

1216 (9th Cir. 2005).

         PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.




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