FILED
NOT FOR PUBLICATION NOV 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RANDOLFO CABRERA RECINOS; Nos. 07-70629
GLORIA ISABEL FAJARDO, 07-73328
Petitioners, Agency Nos. A096-351-297
A096-351-298
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
In these consolidated appeals, Randolfo Cabrera Recinos and Gloria Isabel
Fajardo, natives and citizens of Guatemala, petition for review of the Board of
Immigration Appeals’ (“BIA”) order reversing the immigration judge’s decision
granting cancellation of removal, as well as the BIA’s denial of their motion to
*
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).
reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, and review de novo claims of due
process violations in immigration proceedings, including ineffective assistance of
counsel claims, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We dismiss the petition for review in No. 07-70629 and we deny the petition for
review in No. 07-73328.
The record does not support petitioners’ contention that the BIA applied the
wrong legal standard, and petitioners’ due process and equal protection claims do
not amount to colorable constitutional claims. See Martinez-Rosas v. Gonzales,
424 F.3d 926, 930 (9th Cir. 2005) (“traditional abuse of discretion challenges
recast as alleged due process violations do not constitute colorable constitutional
claims that would invoke our jurisdiction.”). Therefore, we lack jurisdiction to
review the BIA’s discretionary determination that petitioners failed to show
exceptional and extremely unusual hardship to their United States citizen children.
See Mendez-Castro v. Mukasey, 552 F.3d 975, 980-81 (9th Cir. 2009) (court lacks
jurisdiction to review application of the exceptional and extremely unusual
hardship standard to the facts of a case, “be they disputed or otherwise.”).
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen based on new evidence of hardship because the BIA considered the
2 07-70629
evidence of lead petitioner’s and his U.S. citizen daughters’ mental health
disorders, and acted within its broad discretion in determining the evidence was
insufficient to establish prima facie eligibility for cancellation of removal. See
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (BIA’s denial of a motion to
reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
The BIA also did not abuse its discretion in denying petitioners’ motion to
reopen based on the claim that prior counsel provided ineffective assistance when
he withdrew their application for asylum, withholding of removal and protection
under the Convention Against Torture, because petitioners did not submit an
application for the relief sought with their motion to reopen and remand. See 8
C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of
submitting an application for relief must be accompanied by the appropriate
application for relief and all supporting documentation”).
No. 07-70629: PETITION FOR REVIEW DISMISSED.
No. 07-73328: PETITION FOR REVIEW DENIED.
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