NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ANTONIO CHAVARIN-ALDAZ, No. 18-70080 AKA Agustin Chavarin-Aldaz, AKA Agustine E. Chavarin-Aldaz, Agency No. A089-852-966 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 4, 2020** Seattle, Washington Before: GOULD, BEA, and MURGUIA, Circuit Judges. Jose Antonio Chavarin-Aldaz, a citizen of Mexico, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) to deny his motion to reopen. Chavarin-Aldaz originally sought cancellation of removal pursuant to 8 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1229b(b)(1) on the basis that his deportation to Mexico would result in “exceptional and extremely unusual hardship” to his minor daughter, who is a United States citizen. The immigration judge (“IJ”) denied him that relief and the BIA dismissed his appeal. Chavarin-Aldaz subsequently filed a motion to reopen with the BIA, arguing that “material changes” occurred since his hearing before the IJ. Specifically, Chavarin-Aldaz (1) married a United States citizen, (2) had a baby with his new wife, and (3) became the stepfather of his new wife’s 17-year-old son, a United States citizen. Chavarin-Aldaz claimed that the hardship to those additional qualifying relatives, coupled with the hardship to his minor daughter, sufficiently showed that he is entitled to cancellation of removal under § 1229b(b)(1) and warranted reopening his case. The BIA denied the motion, and Chavarin-Aldaz then filed the instant petition for review. We deny the petition. 1. The Attorney General argues that we lack jurisdiction to review the BIA’s denial of Chavarin-Aldaz’s motion to reopen because it implicates a discretionary decision by the agency. Pursuant to 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to review the BIA’s denial of cancellation of removal under 8 U.S.C. § 1229b(b)(1) when the BIA makes the subjective and discretionary determination that an individual failed to establish the “exceptional and extremely unusual hardship” requirement. Romero-Torres v. Ashcroft, 327 F.3d 887, 888 2 (9th Cir. 2003). However, this statutory bar does not apply to a denial of a motion to reopen, where the evidence submitted to the BIA in connection with the motion “addresses a hardship ground so distinct from that considered previously as to make the motion to reopen a request for new relief, rather than a reconsideration of a prior [discretionary] denial.” Fernandez v. Gonzales, 439 F.3d 592, 602–03 (9th Cir. 2006). In that case, we have jurisdiction to review the BIA’s decision insofar as it implicates evidence that is “non-cumulative and different in kind from the evidence that [the petitioner] presented during [his or her] hearing.” Garcia v. Holder, 621 F.3d 906, 911–12 (9th Cir. 2010). Here, Chavarin-Aldaz sought to reopen ...
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