                                                                            FILED
                              NOT FOR PUBLICATION                            JUN 10 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



CLEMENTE FLORES ROMERO;                          Nos. 07-73413
MARIA DE JESUS GUTIERREZ                              08-72875
FLORES,
                                                 Agency Nos. A075-735-270
               Petitioners,                                  A075-735-271

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       In these consolidated petitions for review, Clemente Flores Romero and

Maria de Jesus Gutierrez Flores, husband and wife and natives and citizens of



          *
             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).
Mexico, petition for review of Board of Immigration Appeals’ (“BIA”) orders

dismissing their appeal from an immigration judge’s (“IJ”) decision denying their

applications for cancellation of removal, and denying their motion to reopen and

reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

claims of due process violations in immigration proceedings, Colemar v. INS, 210

F.3d 967, 971 (9th Cir. 2000), and for abuse of discretion the denial of a motion to

reopen or reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). In

No. 07-73413, we dismiss in part and deny in part the petition for review. In No.

08-72875, we deny the petition for review.

         We lack jurisdiction to review the BIA’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, 930 (9th Cir.

2005).

         Petitioners contend the IJ violated due process by not permitting their

qualifying relatives to testify. Contrary to petitioners’ contention, the proceedings

were not “so fundamentally unfair that [they were] prevented from reasonably

presenting [their] case.” See Colmenar, 210 F.3d at 971 (citation omitted).

         Petitioners’ contentions that the agency violated their due process rights by

disregarding their evidence of hardship and by not considering the evidence in the


                                             2                                     07-73413
aggregate are not supported by the record and do not amount to colorable

constitutional claims. See Martinez-Rosas, 424 F.3d at 930.

      The BIA correctly construed petitioners’ January 25, 2008, motion as a

motion to reopen and reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792-

93 (9th Cir. 2005) (BIA should construe the motion based on its underlying

purposes).

      Petitioners have waived any challenge to the BIA’s conclusion that the

motion to reopen was time and number barred by 8 U.S.C. § 1229a(c)(7). See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).

      The BIA acted within its discretion in denying the motion to reconsider

because the motion failed to identify any error of fact or law in the BIA’s prior

decision denying petitioners’ first motion to reopen. See 8 C.F.R. § 1003.2(b)(1);

Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc).

      Petitioners’ remaining contentions are unavailing.

    No. 07-73413: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.

      No. 08-72875: PETITION FOR REVIEW DENIED.




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