           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 16, 2009
                                     No. 08-60356
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ANDRES DE LIRA-SAUCEDO; MARIA DELORES DE LIRA-ROJAS

                                                   Petitioners

v.

ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A93 471 970
                                 BIA No. A93 471 972


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Mexican citizens Andres De Lira-Saucedo and Maria Delores De Lira-
Rojas seek review of the decision of the Board of Immigration Appeals (BIA)
denying their motion to remand and affirming the denial of their application for
cancellation of removal based on alleged hardship to their children, who are
United States citizens.        The Petitioners argue that the BIA erred because
counsel rendered ineffective assistance by failing to establish the requisite level


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-60356

of hardship, including their claim that their youngest child’s medical condition
requires yearly follow up at a medical facility in California. The Petitioners also
argue that counsel rendered ineffective assistance by failing to seek a change of
venue, which would have enabled them to present medical evidence concerning
their daughter’s medical condition. The Petitioners rely upon precedent in which
this court has assumed, without deciding, that an alien’s claim of ineffective
assistance may implicate due process concerns under the Fifth Amendment. See
Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Assaad v. Ashcroft, 378 F.3d
471, 475-76 and n.2 (5th Cir. 2004).
      This court does not have jurisdiction to review the underlying order
denying relief because the determination that the Petitioners did not qualify for
relief from removal under the hardship provisions of 8 U.S.C. § 1229b(b)(1)(D)
was a discretionary determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). Because the Petitioners’ claims of
attorney ineffectiveness relate solely to the denial of discretionary relief, their
claims do not amount to a due process violation. Assaad, 378 F.3d at 474-76.
      In light of the foregoing, the petition for review is DISMISSED.




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