                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 26 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GERSON JOSE REYES-GARCIA,                        No. 13-70541

               Petitioner,                       Agency No. A089-858-519

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

               Respondent.


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

                             Submitted June 25, 2014**

Before:        HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       Gerson Jose Reyes-Garcia, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) denying his

motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen and


          *
             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).
review de novo questions of law. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078

(9th Cir. 2013). We deny the petition for review.

      The BIA did not abuse its discretion by denying for lack of prima facie

eligibility for relief Reyes-Garcia’s motion to reopen to seek cancellation of

removal. See id. at 1080 (“The BIA is entitled to deny a motion to reopen where

the applicant fails to demonstrate prima facie eligibility for the underlying relief.”).

The new evidence accompanying Reyes-Garcia’s motion did not reveal a

reasonable likelihood that he would succeed in demonstrating the requisite

exceptional and extremely unusual hardship in reopened proceedings. See Garcia

v. Holder, 621 F.3d 906, 912-13 (9th Cir. 2010) (stating that prima facie eligibility

“is established when ‘the evidence reveals a reasonable likelihood that the statutory

requirements for relief have been satisfied,’” and holding that, where hardship

evidence “might . . . warrant reopening,” the BIA does “not abuse its discretion by

concluding otherwise” (citation omitted)).

      In reaching this conclusion, the BIA did not err by not noting the

government’s lack of opposition to Reyes-Garcia’s motion to reopen. See Limsico

v. INS, 951 F.2d 210, 213 (9th Cir. 1991) (holding that the BIA does “not err” by

denying a “motion to reopen without an opposition” from the government).

      We are not persuaded the BIA’s characterization of Reyes-Garcia’s


                                            2                                    13-70541
daughter’s psychological condition as “severe” indicates that the BIA failed to give

proper consideration to Reyes-Garcia’s motion.

      To the extent that Reyes-Garcia claims that the BIA’s denial of his motion to

reopen violated due process, his claim lacks merit. See Cruz Rendon v. Holder,

603 F.3d 1104, 1109 (9th Cir. 2010) (“In order to prevail on [a due process] claim,

the alien . . . must show prejudice, ‘which means that the outcome of the

proceeding may have been affected by the alleged violation.’” (citation omitted)).

      PETITION FOR REVIEW DENIED.




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