                                                                           FILED
                              NOT FOR PUBLICATION                           FEB 26 2010

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




                               FOR THE NINTH CIRCUIT



 JUSTO ENRIQUE GOMEZ                               No. 06-74452
 HERNANDEZ; GABRIELA GOMEZ
 HERNANDEZ,                                        Agency Nos. A095-193-855
                                                               A095-193-856
               Petitioners,

   v.                                              MEMORANDUM *

 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                              Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Justo Enrique Gomez Hernandez and Gabriela Gomez Hernandez, husband

and wife and natives and citizens of Mexico, petition for review of the Board of



          *
             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).

AP/Research
Immigration Appeals’ (“BIA”) order denying their motion to reconsider based on

ineffective assistance of counsel, which it also construed as a 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 or reconsider and review de novo claims of due

process violations due to ineffective assistance of counsel, Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

       Construed as a motion for reconsideration, the BIA did not abuse its

discretion in denying the motion because it failed to identify any error of law or

fact in the BIA’s May 16, 2006, decision. See 8 C.F.R. § 1003.2(b)(1).

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

denying the motion because petitioners failed to establish prejudice. See Rojas-

Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an ineffective

assistance of counsel claim, petitioner must demonstrate prejudice).

       PETITION FOR REVIEW DENIED.




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