                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 11 2010

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




                             FOR THE NINTH CIRCUIT



NELIDA BAHENA URBINA,                            No. 07-71937

               Petitioner,                       Agency No. A095-108-772

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

               Respondent.



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

                             Submitted May 25, 2010 **

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

       Nelida Bahena Urbina, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s decision denying cancellation of removal, and denying her



          *
             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).
motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to remand, Romero-Ruiz v. Mukasey,

538 F.3d 1057, 1062 (9th Cir. 2008), and de novo questions of law, Hernandez v.

Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008). We dismiss in part and deny in

part the petition for review.

      We lack jurisdiction to review the BIA’s discretionary determination that

Bahena Urbina failed to show exceptional and extremely unusual hardship to a

qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.

2003). Bahena Urbina’s contention that the agency failed to properly weigh her

evidence of hardship is not supported by the record and does not amount to a

colorable constitutional claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930

(9th Cir. 2005) (“[T]raditional abuse of discretion challenges recast as alleged due

process violations do not constitute colorable constitutional claims that would

invoke our jurisdiction.”).

      Our review of the BIA’s decision to deny Bahena Urbina’s motion to

remand for fraud by an immigration consultant is foreclosed by Hernandez v.

Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008) (holding that “reliance upon the

advice of a non-attorney cannot form the basis of a claim for ineffective assistance

of counsel in a removal proceeding”).


                                          2                                    07-71937
      The BIA did not abuse its discretion in denying Bahena Urbina’s motion to

remand because she failed to set forth any new facts or present any new evidence

to warrant a remand. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir.

2008) (“The formal requirements of a motion to remand and a motion to reopen are

the same.”); see also 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen

“shall state the new facts that will be proven at a hearing to be held if the motion is

granted and shall be supported by affidavits or other evidentiary material”).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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