                                                                           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                               NOT FOR PUBLICATION                          NOV 22 2010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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