                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-4122
                                     ___________

                              FRANCISCO RAMIREZ,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                   ____________________________________

                     On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A070-916-267)
                 Immigration Judge: Honorable Margaret Reichenberg
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 14, 2010

               Before: RENDELL, FISHER and GARTH, Circuit Judges

                             (Opinion filed :July 15, 2010)

                                      _________

                                       OPINION
                                      _________

PER CURIAM

      Francisco Ramirez petitions for review of an order of the Board of Immigration

Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) decision denying his motion to
reconsider. For the reasons that follow, we will deny the petition for review.

                                             I.

       Ramirez, a citizen of Guatemala, entered the United States in September 1993 and

was placed in removal proceedings for not having been admitted or paroled. In February

1994, Ramirez applied for asylum. At a hearing in October 2007, Ramirez withdrew his

application for asylum, and at a hearing in May 2008, Ramirez conceded removability but

requested cancellation of removal pursuant to INA § 240A(b)(1) [8 U.S.C. § 1229b(b)(1)]

based on his allegation that his removal would result in exceptional and extremely

unusual hardship to his two U.S. citizen children. Ramirez and his wife testified that their

two young children rely on their father for emotional and physical support. They testified

that their daughter has a speech problem, and Ramirez takes her to weekly speech therapy

appointments. The parents testified that if Ramirez is removed, the children would not

relocate to Guatemala, as the mother (who is a native and citizen of Honduras) would not

be able to find work and the daughter would not be able to receive speech therapy in

Guatemala.

       The IJ considered the family’s circumstances, including the daughter’s speech

disorder, but found that Ramirez’s removal would not constitute exceptional and

extremely unusual hardship to the two children. The IJ denied Ramirez’s application for

cancellation of removal and ordered him removed to Guatemala. Ramirez did not appeal

to the BIA. Rather, through new counsel, Ramirez moved the IJ to reconsider his case.



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In his motion, Ramirez submitted new evidence of his daughter’s speech disorder. He

also argued that the withdrawal of his asylum application was not an informed decision,

as his previous attorney and the IJ failed to advise him that he could pursue both the

petitions for asylum and his application for cancellation of removal.

       The IJ denied Ramirez’s motion to reconsider, finding that he failed to specify

errors of fact or law in the prior decision. The IJ found that the record did not support

Ramirez’s assertion that his choice to withdraw his asylum application was not knowing

and voluntary. Ramirez appealed, and in an order dated October 2, 2009, the BIA

dismissed Ramirez’s appeal, agreeing with the IJ’s reasoning for denying reconsideration.

Treating the additional evidence as a motion to reopen, see 8 C.F.R. § 1003.23(b)(3), the

BIA declined to reopen the proceedings, concluding that the submitted evidence was not

new or material and did not support a conclusion of exceptional and extremely unusual

hardship. Ramirez filed a timely petition for review.

                                             II.

       We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).

We review the BIA’s denial of a motion to reconsider or reopen for abuse of discretion.

See INS v. Doherty, 502 U.S. 314, 323 (1992); Borges v. Gonzales, 402 F.3d 398, 404

(3d Cir. 2005). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v.

Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003). Thus, in order to succeed on the petition for

review, Ramirez must show that the BIA’s discretionary decision was arbitrary, irrational,



                                              3
or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted).

                                            III.

       We conclude that the BIA did not abuse its discretion in denying Ramirez’s motion

to reconsider. Ramirez argues that the BIA erred by refusing to consider the additional

evidence submitted with his motion to reconsider. A motion to reconsider is based solely

on errors of fact or law in a prior decision and is not to be supported with new evidence.

See 8 C.F.R. § 1003.23(b). Under 8 C.F.R. § 1003.2(c)(1), the BIA has discretion to

reopen proceedings if the movant states new facts to be proved at a hearing that are

supported by affidavits or other evidentiary material. That new evidence must be material

and have been unavailable at the former hearing. Id. Ramirez argues that the evidence

submitted — psychiatric evaluations of his children — was new and material. However,

since the IJ had previously found that Ramirez’s daughter had a speech disorder but that

her treatment would not be affected with her father’s absence, this new evidence was

immaterial on the issue of exceptional and extremely unusual hardship.1 Thus, the BIA

did not abuse its discretion in declining to reopen proceedings based on the evidence

submitted.

       Ramirez also argues that he was deprived of due process because the IJ failed to




       1
        We lack jurisdiction to review the IJ’s conclusion that the daugher’s treatment
would not be interrupted by her father’s removal. See Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003) (holding that the “hardship determination” is
discretionary and, accordingly, this Court lacks jurisdiction to review it).

                                             4
advise him of his right to pursue both an asylum claim and an application for cancellation

of removal. In the immigration context, due process entitles an alien to “a full and fair

hearing and a reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen.,

455 F.3d 175, 185 (3d Cir. 2006). The record reveals no violation of due process. See

Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006). At a proceeding in November

2006, the IJ told Ramirez that it was fine for him to proceed with both a claim for asylum

and a request for cancellation of removal. (A.R. 131.) At a later proceeding in October

2007, the IJ requested Ramirez’s counsel to confirm that his decision to withdraw the

claims for asylum and withholding of removal was knowing and voluntary. (A.R. 135.)

Ramirez testified that he wished to withdraw these claims, that he was satisfied with the

advice of his attorney, and that he did not have any questions regarding the withdrawal of

the claims. (A.R. 136-37.) After both attorneys testified that they were satisfied that the

withdrawal was knowing and informed, the IJ deemed the applications withdrawn. (A.R.

137.) For these reasons, we reject Ramirez’s due process claim.

       For the above reasons, we will deny the petition for review.




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