                                                                           FILED
                             NOT FOR PUBLICATION                            APR 20 2012

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




                             FOR THE NINTH CIRCUIT



ALEJANDRO HERNANDEZ,                             No. 10-72791

               Petitioner,                       Agency No. A072-538-285

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

               Respondent.



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

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Alejandro Hernandez, a native and citizen of Mexico, petitions pro se for

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

reopen. We have jurisdiction under 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.


          *
             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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for

review.

      Hernandez failed to raise, and therefore waived, any challenge to the BIA’s

denial of his motion to reopen based on ineffective assistance of counsel for failure

to comply with the procedural requirements in Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988). See Rizk v. Holder, 629 F.3d 1083, 1091 n. 3 (9th Cir. 2011) (a

petitioner waives an issue by failing to raise it in his or her opening brief).

      Because Hernandez’s ineffective assistance claim was not successful, the

BIA did not abuse its discretion in denying the motion to reopen, construed as a

motion based on new evidence, on the ground that Hernandez did not show that the

psychological evaluation could not have been obtained and presented at the time of

the merits hearing. See 8 C.F.R. § 1003.2(c) (“A motion to reopen proceedings

shall not be granted unless it appears to the Board that evidence sought to be

offered is material and was not available and could not have been discovered or

presented at the former hearing.”). The BIA did not violate due process by not

further considering Hernandez’s hardship evidence after determining that it did not

meet the threshold regulatory requirements for reopening. See Lata v. INS, 204




                                            2                                     10-72791
F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a petitioner to prevail on a due

process claim).

      PETITION FOR REVIEW DENIED.




                                          3                                    10-72791
