                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 06 2011

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




                              FOR THE NINTH CIRCUIT



DANIEL CARDENAS-RUBIO,                            No. 08-73884

               Petitioner,                        Agency No. A076-605-721

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

               Respondent.



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

                             Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       Daniel Cardenas-Rubio, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny

in part and dismiss in part the petition for review.


          *
             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).
      In his opening brief, Cardenas-Rubio failed to address, and therefore has

waived any challenge to, the BIA’s dispositive determination that his motion was

untimely without exception. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60

(9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief

are waived).

      We lack jurisdiction to review Cardenas-Rubio’s ineffective assistance of

counsel contention because he failed to raise that issue before the BIA. See Barron

v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction to

review contentions not raised before the agency).

      Cardenas-Rubio’s contention that the BIA violated his due process rights by

disregarding his hardship evidence 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.”).

      Cardenas-Rubio’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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