Justo Enrique Gomez Hernandez; Gabriela Gomez Hernandez v. ERIC H. HOLDER Jr., Attorney General

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
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTO ENRIQUE GOMEZ
HERNANDEZ; GABRIELA GOMEZ
HERNANDEZ,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-74452
Agency Nos. A095-193-855
A095-193-856
MEMORANDUM *
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
FILED
FEB 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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AP/Research 06-74452 2
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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