                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         SEP 21 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

LIONEL MARTINEZ,                                 No. 09-70769

              Petitioner,                        Agency No. A095-583-185

  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.

       Lionel Martinez, a native and citizen of Mexico, petitions for review of the

decision of the Board of Immigration Appeals denying his motion to reopen the

underlying denial of his application for cancellation of removal which was based




        *
             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).
on his failure to establish the requisite hardship to his United States citizen

children.

       Martinez introduced new evidence of hardship consisting of an affidavit

from the mother of his United States citizen children stating that the children

would remain in the United States instead of moving to Mexico with petitioner,

and this separation of the family would constitute hardship. We conclude that the

BIA properly considered the new evidence offered by Martinez, and acted within

its broad discretion in determining that the evidence did not establish extreme

hardship, and was insufficient to warrant reopening. See Singh v. INS, 295 F.3d

1037, 1039 (9th Cir. 2000) (the BIA’s denial of a motion to reopen shall be

reversed only if it is “arbitrary, irrational, or contrary to law”).

       Martinez also introduced evidence with his motion to reopen concerning the

hardship caused by his daughter’s eczema. This hardship evidence was previously

raised and rejected before the agency, and we lack jurisdiction to review this

discretionary determination. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th

Cir. 2006) (§ 1252(a)(2)(B)(i) bars jurisdiction when question presented in motion

to reopen is essentially the same hardship evidence ground originally decided).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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