UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MIGUEL ANGEL AGUIRRE

- ONATE, a/k/a Alberto Glavan, Petitioner,

v. ERIC C. HOLDER, JR., United States Attorney General, Respondent. No s . 11

- 9541 & 11

- 9570 ( Petition s for Review )

ORDER AND JUDGMENT

0F *

Before TYMKOVICH , HOLLOWAY , and MATHESON , Circuit Judges.
Miguel Angel Aguirre

- Onate , a Mexican citizen and national , petitions for review of the B oard of Immigration Appeals’ affirmance of the Immigration Judge’s denial of his request for cancel l ation of removal (No. 11

- 9541) . He also petitions for review of the BIA’s denial of his motion for re open ing and reconsiderati on

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of th e s e appeal s . See Fed. R. App. P. 34(a)(2) ; 10th Cir. R. 34.1(G). The case s are therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be c ited, however, for its persuasive value consistent with Fed. R App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 16, 2012
Elisabeth A. Shumaker Clerk of Court- 2

- (No. 11

- 9570). T he petitions have been consolidated. Exercising jur isdiction under 8 U.S.C. § 1252 ( d ) , w e d ismiss the m for lack of jurisdiction

. BACKGROUND Aguirre

- Onate entered the United States in 1996 at the age of fourteen without
admi ssion or parole . In 2008, the Department of Homeland Security initiated removal proceedings

. Although he conceded removability, h e sought cancellation of removal , which re quired him to prove, among other things, “ exceptional and extremely unusual hardship to [hi s ] . . . parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence .” 8 U.S.C. § 1 2 29b(b) (1)(D)

. 1F 1 Aguirre

- Onate contended his r e m o val would result in exceptional and extremely unusual hardship to his l awful permanent resident parents and to his United States citizen daughter. In presenting his case a t the hearing before the IJ, Aguirre

- Onate testified that he was twenty

- eight years old and that he owned nine restaurants, a construction company, a food distribution center, and rental houses. He had $50,000 of equity in
his own home , had $450,000 in cash, and lived with his alien girlfriend, who is t he mother of his nine

- year - old daughter. He further testified that his daughter was healthy and doing well in the second grade. But h e stated that he worried about the

1 In addition, § 1229b(b)(1)(A)

- (C) requires an alien seeking cancellation of removal to show his continuous physical presence in the United States for ten years, his good moral character during that time, and that he has not been convicted of certain crimes. None of these additional requirements is at issue in this appeal.- 3

- possibility that he, his girlfriend , or his daughter could be a target for kidnapping if they were to live in Mexico , because he had help ed 120 families in his hometown and people know he has money

. Additionally , Aguirre

- Onate testified that h is parents own homes in the United States and Mexico and travel between the two frequently.
The IJ denied Aguirre

- Onate’s application for cancellation of removal and ordered his removal from the United States. In doing so, t he IJ found that removal would not be an exceptional or extremely unusual hardship to Aguirre

- Onate ’s parents, because they are in good h ealth and they travel frequently between the ir homes in the United States and Mexico and at the time of the hearing were in Mexico . Also, the ALJ found that removal would not be an exceptional or extreme hardship to Aguirre

- Onate’s daughter , because she i s bilingual , is healthy, has no medical issues, has no difficulty in school , would be able to adapt to the social structure in Mexico due to her young age , would have a place to live in Mexico at her grandparents ’ home, and would have other relatives in Me xico. The IJ did not address a possible threat of kidnapping. Noting Aguirre

- Onate ’s economic resources, the IJ decided that he would be able to support his family in Mexico.

2F 2
The BIA dismissed Aguirre

- Onate’s appeal, affirming the IJ’s determination
t hat he had not met his burden of establishing that his removal would result in exceptional and extremely unusual hardship t o his daughter or to his parents

. With

2 In the alternative, the IJ declined to grant relief in the exercise of discreti on because Aguirre

- Onate had been fraudulently living and doing business in the United States, including filing tax returns, for several years after purchasing a false identity.- 4

- respect to kidnapping, the BIA determin ed that h e failed to provide concrete evidence , including evidence of threats, that his daughter might be a ta rget for kidnappers in Mexico, and therefore the danger of kidnap p ing could not be considered a hardship. Aguirre

- Onate filed a petition for review (No

. 1 1

- 9541).
H e also filed with the BIA a motion to reopen and t o reconsider

. 3 F 3 He argu ed that the BIA erred in concluding he failed to establish exceptional and extremely unusual hardship to his parents and to his daughter. In particular, he faulted the BIA for failing to sufficiently conside r the possibility that his daughter might be kidnapped in Mexico if he were to be removed

. To support his argument, he relie d , for the first time, on the United States Department of State Country Report on Human Rights in Mexico and other sources. Additionally, he contended he had new material evidence not available at the IJ’s hearing that he surprised his counsel at the hearing when he testified about hav ing $450,000 in cash from the sale of some of his businesses. The BIA denied reopen ing and reconsider ation , determin ing that Aguirre

- Onate had not identified error in i t s prior decision and that he did not show the alleged new evidence regarding the cash from the sale of some of his businesses

3 “A motion to reopen seeks to present evidence that ‘is material and was n ot available and could not have been discovered or presented at the former hearing.’” Mahamat v. Gonzales , 430 F.3d 1281, 1283 n.3 (10th Cir. 2005) (quoting 8 C.F.R. § 1003.2(c)(1)). “A motion to reconsider . . . is available to raise errors of fact or l aw committed by the BIA in its prior decision, and must be supported by pertinent authority.” Id . (citing 8 U.S.C. § 1229a(c)(6)(C) ; 8 C.F.R. § 1003.2(b)(1) ).- 5

- was un available previously . Noting he had testifie d at the hearing that people knew of his financial resources due to his supporting 120 families in his hometown for four to six years , the BIA determined that he did not explain how the sale of his businesses would make a difference , how potential kidnappe rs would know he had
sold some of his businesses and therefore had more cash , or why the cash would be important for targeting Aguirre

- Onate or his family for kidnapping. Also, the BIA determined that additional evidence of the possibility of kidnapping c ould have been presented at the IJ’s hearing . Finally, t he BIA noted that although Aguir r e - Onate’s parents were in Me xico at the time of the hearing, they ow ned a home there , and he had aunts and uncles living in Mexico , he did not assert that any of them had ever been targeted for kidnapping due to his financial assets.
The BIA therefore concluded Aguirre

- Onate failed to show that he had previously unavailable evidence that would likely change the outcome of his case. Aguirre

- Onate filed a nothe r petition for review , seeking review of the denial of his motion for reopening and reconsideration (No. 11

- 9570). No. 11
- 9541

— DENIAL OF CANCELLATION OF REMOVAL We first consider whether we have jurisdiction over th i s petition for review. The parties agree that we lack jurisdiction to review the agency’s discretionary denial of cancellation of removal and i t s determination that Aguirre

- Onate failed to show his parents and daughter would suffer exceptional and extremely unusual hardship if
h e is r e m o v ed

. See 8 U.S.C. § 1252(a)(2)(B)(i) ; Arambula

- Medina v. Holder ,- 6

- 572 F.3d 824, 828 (10th Cir. 2009)

. Aguirre

- Onate , however, seeks to circumvent this bar to our review by asserting constitutional claims based on equal protection and due process. W e do have jurisdiction to consider constitutional claims , s ee 8 U.S.C. § 1252(a)(2)(D) , but they must be subst antial. See Alvarez

- D elmuro v. Ashcroft , 360 F.3d 1254, 1256 (10th Cir. 2004)

. Aguirre

- Onate argues that the BIA violated his Fifth Amendment equal protection rights by fail ing to take administrative notice under 8 C.F.R. § 1003.1(d)(3)(iv) of the Mexico Country Report s , whi ch allegedly would have supported his kidnapping concerns.

4 F 4 H is equal protection challenge is based on his belie f that the BIA onl y take s notice of Country R eports when the y benefit the government. We agree with the government that Aguirre

- Onate has not stated a substantial equal protection claim. As Aguirre

- Onate himself recognizes, t he BIA is not required to sua sponte take notice of C ountry R eports

. See de la Llana

- Castellon v.
INS , 16 F.3d 1093, 1096 (10th Cir. 1994) ( no ting that BIA may take administrative notice). Rather, he had the burden to draw the reports to the BIA’s attention and to prove hardship

. See 8 U.S.C. § 1229a(c)(4)(A) (placing burden of proof on alien to establish eligibility for relief from removal); id . § 1229b(b) (stating alien must

4 Section 1003.1(d)(3)(iv) permits the BIA to take “administrative notice of commonly known f acts such as current events or the contents of official documents.” Country Reports are an example of official documents. 67 Fed. Reg. 54878, 54892 (Aug. 26, 2002).- 7

- establish exceptional and extremely unusual hardship to qualifying relative). He, however, did not meet his burden as he did not call the BIA’s attention to the reports until he filed his motion for reopening or reconsid eration. Thus, he was not treated differently from all other similarly situated aliens for equal protection purposes. Additionally, Aguirre

- Onate argues that the BIA’s lack of neutrality in tak ing administrative notice of Country Reports violates the Du e Process Clause of the Fifth Amendment b ecause it show s a bias towards removal

. He a dmit s that he does not have a liberty interest in remaining in the United States that would support a due process claim

. See Arambula

- Medina , 572 F.3d at 828 (“[A] petitioner has no liberty or property interest in obtaining purely discretionary relief.” (internal quotation marks omitted) ). But he submits that he has a liberty interest in the welfare of his United States citizen daughter. We have held that when aliens predicate constituti onal claims on the United
States citizenship status of their children , the “claims do not present ‘ substantial constitutional issue[s]’ that might permit review. ” Alvarez

- Delmuro , 360 F.3d at 1257 (quoting Morales Ventura v . Ashcroft , 348 F.3d 1259, 1262 (10th Cir. 2003) ). In other words, “ t he incidental impact visited upon the [citizen] children of deportable, illegal aliens does not raise constitutional problems.” Morales Ventura , 348 F.3d at 1262 (internal quotation mar ks omitted)

. Accordingly, we do not have jurisdiction to consider Aguirre

- Onate’s argument predicating his due process claim- 8

- on his daughter’s citizenship.

5F 5 See Alvarez

- Delmuro , 360 F.3d at 1256

- 57 ; Morales
Ventura , 348 F.3d at 1262

. No. 11
- 9570

— DENIAL OF REOPENING AND RECONSIDERATION

Aguirre

- Onate argues that the BIA erred in den y i ng his motion to reopen and
to reconsider

. He first contend s that the BIA improperly required specific threats of kidnapping instead of considering the Country Reports. In effect, he challeng es the underlying merits decision denying his motion for a cancellation of removal for failure to show exceptional and extremely unusual hardship to qualifying family members

. W e do not have jurisdiction to consider th e merits decision on review of the denial of reopening or reconsideration

. See Alzainati v. Holder , 568 F.3d 844, 849 (10th Cir. 2009) (“Because § 1252(a)(2)(B)(i) precludes our review of an ‘exceptional and extremely unusual hardship’ determination under § 1229b(b)(1)(D), it also precludes our jurisdiction to review the BIA’s denial of a motion to reopen because the alien still had failed to show the requisite hardship.”); c f. Kucana v. Holder , 130 S. Ct. 827 , 839 n.17 (2010) (declining to consider whether court has

5 Although we left open the possibility in both Alvarez

- Delmuro , 360 F.3d at 1257 , and Morales Ventura , 348 F.3d at 1262 , that under some circumstances constitutional concerns might require us to construe § 1252(a)(2)(B)(i) to permit our review, we conclude this case does not do so. We recognize that in both of those cases, the aliens asse rted due process claims based on alleged liberty interests of the citizen children, whereas in this case Aguirre

- Onate based his due process claim on his alleged liberty interest in his daughter’s welfare. But, like in those cases, Aguirre

- Onate’s claims are based on his daughter’s United States citizenship and possible hardship to her if he is removed

. Thus, we conclude the holdings of those cases apply to this case.- 9

- jurisdiction to review denial of motion to reopen if court lacks jurisdiction to consider underlying claim for relief). Aguirre

- Onate also argues that the BIA’s denial of his motion to reopen and reconsider was er r oneous because he should have been allowed to present further evidence. He contends the BIA failed to n ote that the source of his cash was the sale of several businesses after the deportation proceedings began and counsel was unaware of this before the I J’s hearing. Further, h e believes he could not have presented evidence at the hearing that the cash would increase the risk of kidnapping because he did not know the IJ would treat the cash as an asset that would diminish , rather than increase, any possib le hardship to his daughter. Rely ing on 8 U.S.C. § 12 29a (c)(4)(B) , he therefore contends that the IJ should have given him notice that he needed to provide additional documents to meet his burde n of proving hardship due to the risk of kidnapping.
Becaus e Aguirre

- Onate again challeng es the agency’s discretionary decision that he is not entitled to cancellation of removal, we have no jurisdiction to consider his argument

. If w e construe his a rgument that the IJ failed to give him notice as a due process claim, we conclude he failed to assert a substantial due process claim

. As indicated previously, h e had clear notice that it was his burden to show hardship. Moreover, the BIA considered the new evidence and determined it would not affect the outcome of his case. Thus, we lack jurisdiction to consider the discretionary denial of reopening and reconsideration

.- 10

- CONCLUSION
We D ISMISS both petitions for review for lack of jurisdiction

. Mr. Aguirre

- Onate’s motion for judicial notice of the 2010 Mexico Country Report and its inclusion in the record is DENIED.

6 F 6 His motion to defer ruling on th at motion and his motion to hold appeal No. 11

- 9541 in abeyance are DENIED as moot.

Entered for the Court
Timothy M. Tymkovich Circuit Judge

6 We decide the petitions based on the administrative records. See 8 U.S.C. § 1252(b)( 4)(A) (“[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based[.]”); Ritonga v. Holder , 633 F.3d 971, 977 n.3 (10th Cir. 2011) (declining to consider Country Report because it was not part of record).