                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 15 2012

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




                              FOR THE NINTH CIRCUIT



ERNESTO MARTINEZ ORENDAIN;                        No. 10-71831
ROSA ISELA MARTINEZ,
                                                  Agency Nos. A097-361-070
               Petitioners,                                   A097-361-071

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

               Respondent.



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

                              Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Ernesto Martinez Orendain and Rosa Isela Martinez, natives and citizens of

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

dismissing their appeal from an immigration judge’s (“IJ”) removal order. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law.

          *
             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).
Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). We dismiss in part and deny

in part the petition for review.

      We lack jurisdiction to review the agency’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, 929 (9th Cir.

2005). Petitioners’ contention that the agency violated due process by not properly

analyzing their evidence of hardship is not supported by the record and does not

amount to a colorable constitutional claim. See id. at 930 (“[T]raditional abuse of

discretion challenges recast as alleged due process violations do not constitute

colorable constitutional claims that would invoke our jurisdiction.”).

      The BIA properly concluded that petitioners failed to establish that their

former counsel had provided ineffective assistance before the IJ where they did not

comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637,

639 (BIA 1988), and the ineffective assistance is not plain on the face of the

record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004).

      Petitioners’ due process claim regarding the BIA’s refusal to reinstate their

voluntary departure orders is unavailing.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




                                            2                                    10-71831
