Jaime SILVA-JIMENEZ, also known as Jaine Jimenez, Petitioner, v. Eric H. HOLDER, U.S. Attorney General, Respondent, 401 F. App'x 615

SUMMARY ORDER Petitioner Jaime Silva-Jimenez, a Mexican national, seeks review of the August 27, 2009 order of the BIA denying his motion to reopen proceedings following its dismissal of petitioner’s appeal from the denial of his application for cancellation of removal. In re Jaime Silva-Jimenez, No. [ AXXX XXX XXX ] (B.I.A. Aug. 27, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the -BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).

When the claims are merely factual, the BIA exceeds its discretion “only in those limited circumstances” where its decision “(1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, or (4) contains only

summary or conclusory statements.” Song Jin Wu v. INS, 436 F.3d 157, 161 (2d Cir.2006). The BIA shall grant a motion to reopen only if “it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Silva contends that the BIA erred in denying his motion, which was based on purportedly new, material testimony from his wife and evidence pertaining to his son’s learning disability. On review, we cannot conclude that the BIA abused its discretion in denying petitioner’s motion.

Although Silva and his wife were separated at the time of his hearing before the immigration judge, after reviewing the record, we agree with the BIA’s conclusion that petitioner did not establish that her testimony would provide information that could not have been presented at the prior hearing or that it would be new and material to his petition. We note that petitioner did not present any evidence showing that petitioner’s son Brandon could not receive the requisite special education services in Mexico. We have considered petitioner’s remaining arguments and find them to be without merit.

For the foregoing reasons, the petition for review is DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.