FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAMARA NODAROVNA No. 08-71601
LATSABIDZE; TAMAZ LATSABIDZE,
Agency Nos. A079-258-307
Petitioners, A079-258-308
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Lamara Nodarovna Latsabidze and Tamaz Latsabidze, citizens of Georgia,
petition for review of the Board of Immigration Appeals’ (“BIA”) order denying
their motion to reopen based on ineffective assistance of counsel. Our jurisdiction
is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reopen and de novo questions of law. Mohammed v. Gonzales, 400 F.3d
785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
The BIA acted within its discretion in denying petitioners’ motion to reopen
because petitioners did not establish that former counsel “failed to perform with
sufficient competence.” See Mohammed, 400 F.3d at 793. It follows that
petitioners’ claim that the BIA violated due process fails. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a petitioner to prevail on a due
process claim).
We lack jurisdiction to consider petitioners’ contention that former counsel’s
appeal brief failed to adequately challenge the immigration judge’s decision
because petitioners failed to raise this claim with the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004) (generally requiring exhaustion of claims before
the BIA).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-71601