Palomino Ochoa v. Gonzales
Docket: Nos. 04-70346, A75-262-320, A75-262-407, A75-262-319
Court: Court of Appeals for the Ninth Circuit; April 11, 2005; Federal Appellate Court
Alfredo Palomino Ochoa, his wife Josefina Moreno Palomino, and their son Freddy Palomino, all citizens of Mexico, sought a review of the Board of Immigration Appeals' (BIA) denial of their motion to reopen removal proceedings. Their petition falls under the jurisdiction of 8 U.S.C. § 1252, which allows for review of BIA decisions for abuse of discretion and de novo review of due process claims. The petition was denied. The petitioners requested the BIA to reconsider their case based on new evidence of medical hardship related to their applications for cancellation of removal. They alleged that the BIA violated their due process rights by not individually assessing the availability of medical services in Mexico. The BIA's decision was upheld, as it acted within its discretion in determining that the new evidence did not sufficiently establish eligibility for cancellation of removal. The BIA referenced INS v. Abudu, stating that a motion to reopen may be denied if the movant fails to establish a prima facie case for the underlying relief sought. The BIA specifically found that the petitioners did not demonstrate that the necessary medical treatments for their children’s asthma were unavailable in Mexico. As a result, the BIA's denial did not constitute a due process violation, reinforcing that the petitioners hold the burden of proving that their removal would cause exceptional and extremely unusual hardship to a qualifying relative. The petition for review was denied, and the decision is not intended for publication or citation, as per Ninth Circuit Rule 36-3.