Orendain v. Holder

485 F. App'x 268

Opinion

MEMORANDUM

Footnotes

•

**

Ernesto Martinez Orendain and Rosa Isela Martinez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir.2004). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the agency’s discretionary determination that petitioners failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005). Petitioners’ contention that the agency violated due process by not properly analyzing their evidence of hardship is not supported by the record and does not amount to a colorable constitutional claim. See id. at 930 (“[TJraditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”).

The BIA properly concluded that petitioners failed to establish that their former counsel had provided ineffective assistance before the IJ where they did not comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).

Petitioners’ due process claim regarding the BIA’s refusal to reinstate their voluntary departure orders is unavailing.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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