                                                                            FILED
                              NOT FOR PUBLICATION                            OCT 13 2010

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




                              FOR THE NINTH CIRCUIT



ELOIDA CRUZ AVALOS, a.k.a. Elodia                 No. 08-73600
Cruz Avalos,
                                                  Agency No. A095-197-241
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Eloida Cruz Avalos, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to

reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS,

          *
             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).
321 F.3d 889, 894 (9th Cir. 2003), and we dismiss in part and deny in part the

petition for review.

         We lack jurisdiction to review the agency’s discretionary determination that

Cruz Avalos failed to show exceptional and extremely unusual hardship to a

qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.

2005).

         The BIA did not abuse its discretion by denying Cruz Avalos’ motion to

reopen as to cancellation of removal because the motion failed to set forth any new

facts or present any new evidence to demonstrate the requisite hardship. See 8

C.F.R. § 1003.2(c)(1) (providing that a motion to reopen “shall state the new facts

that will be proven at a hearing to be held if the motion is granted and shall be

supported by affidavits or other evidentiary material”).

         In her opening brief, Cruz Avalos fails to address, and therefore has waived

any challenge to, the BIA’s determination that her claim of hardship to her younger

daughter is moot. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.

1996).

         The BIA did not abuse its discretion by denying Cruz Avalos’ motion to

reopen to apply for asylum, withholding of removal, and relief under the

Convention Against Torture because the BIA considered the evidence she


                                            2                                   08-73600
submitted and acted within its broad discretion in determining that the evidence

was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th

Cir. 2002) (BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary,

irrational, or contrary to law”).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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