                                                                           FILED
                               NOT FOR PUBLICATION                          JAN 21 2010

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




                              FOR THE NINTH CIRCUIT



 IGNACIO MORFIN-BERNABE; et al.,                  No. 07-72104

               Petitioners,                       Agency Nos. A095-591-568
                                                              A095-591-569
   v.

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

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                              Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Ignacio Morfin-Bernabe and Alicia Perez-Lopez, natives and citizens of

Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”)

order denying their motion to reopen removal proceedings based on ineffective



          *
             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).

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assistance of counsel. 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 due

process claims. Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). We deny in

part and dismiss in part the petition for review.

       We agree with the BIA’s determination that petitioners failed to comply with

the requirements in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and did not

establish that former counsel’s performance violated due process. See id. at 596.

The BIA did not abuse its discretion in denying petitioners’ motion to reopen.

       We lack jurisdiction to review the BIA’s decision not to exercise its sua

sponte power. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

       Petitioners’ contention that the BIA failed to consider the evidence newly

submitted with their motion is not supported by the record.

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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