FILED
NOT FOR PUBLICATION MAR 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN GARDUNO-LOPEZ; FIDELA No. 08-74785
GARDUNO,
Agency Nos. A099-457-059
Petitioners, A099-457-060
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Juan Garduno-Lopez and Fidela Garduno, natives and citizens of Mexico,
petition for review of the Board of Immigration Appeals’ (“BIA”) order denying
their motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252.
We review for abuse of discretion the denial of a motion to reopen, and review de
*
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).
novo claims of ineffective assistance of counsel. See Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.
To the extent we have jurisdiction to review the BIA’s denial of petitioners’
motion to reopen, see Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir. 2006),
we conclude the BIA did not abuse its discretion in doing so based on the new
evidence of hardship, because the BIA considered the evidence of the U.S. citizen
children’s mood 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”).
Nor did the BIA abuse its discretion in denying petitioners’ motion to reopen
based on the claim that prior counsel provided ineffective assistance, where they
did not establish that evidence of their children’s problems was available
previously. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to
prevail on ineffective assistance of counsel claim, alien must demonstrate
prejudice).
PETITION FOR REVIEW DENIED.
2 08-74785