Lionel MARTINEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 396 F. App'x 351

MEMORANDUM 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 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.2002) (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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.