                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 25 2010

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




                             FOR THE NINTH CIRCUIT



TOMAS AYALA-PONCE; ANGELICA                      No. 08-71330
AYALA MONTESINO; AMADOR
AYALA MONTESINO,                                 Agency Nos. A095-175-416
                                                             A095-175-417
              Petitioners,                                   A095-175-418

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

              Respondent.



TOMAS AYALA-PONCE,                               No. 09-72132

              Petitioner,                        Agency No. A095-175-416

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted August 10, 2010 **

Before:        LEAVY, HAWKINS, and IKUTA, Circuit Judges.

      In these consolidated petitions for review, Tomas Ayala-Ponce, Angelica

Ayala Montesino, and Amador Ayala Montesino, natives and citizens of Mexico,

petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying

their motions to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen and de

novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny both petitions for review.

      In the opening brief, petitioners fail to address, and thereby waive any

challenge to, the BIA’s order denying their second motion to reopen. 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).

      The BIAdid not abuse its discretion by denying Ayala-Ponce’s third motion

to reopen. Ayala-Ponce failed to establish that his former counsel did not perform

with sufficient competence during proceedings because Ayala-Ponce did not

become eligible to adjust his status until after the deadline for filing a motion to



          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2                                     08-71330
reopen had expired. See Mohammed, 40 F.3d at 793 (petitioner must demonstrate

first that counsel failed to perform with sufficient competence, and, second, that he

was prejudiced by counsel’s performance). It follows that Ayala-Ponce’s due

process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error to establish due process claim).

      PETITIONS FOR REVIEW DENIED.




                                           3                                   08-71330
