Nelida Bahena Urbina 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELIDA BAHENA URBINA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-71937
Agency No. A095-108-772
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010**
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Nelida Bahena Urbina, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision denying cancellation of removal, and denying her
FILED
JUN 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to remand, Romero-Ruiz v. Mukasey,
538 F.3d 1057, 1062 (9th Cir. 2008), and de novo questions of law, Hernandez v.
Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008). We dismiss in part and deny in
part the petition for review.
We lack jurisdiction to review the BIA’s discretionary determination that
Bahena Urbina failed to show exceptional and extremely unusual hardship to a
qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.
2003). Bahena Urbina’s contention that the agency failed to properly weigh her
evidence of hardship is not supported by the record and does not amount to a
colorable constitutional claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930
(9th Cir. 2005) (“[T]raditional abuse of discretion challenges recast as alleged due
process violations do not constitute colorable constitutional claims that would
invoke our jurisdiction.”).
Our review of the BIA’s decision to deny Bahena Urbina’s motion to
remand for fraud by an immigration consultant is foreclosed by Hernandez v.
Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008) (holding that “reliance upon the
advice of a non-attorney cannot form the basis of a claim for ineffective assistance
of counsel in a removal proceeding”).

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07-71937 3
The BIA did not abuse its discretion in denying Bahena Urbina’s motion to
remand because she failed to set forth any new facts or present any new evidence
to warrant a remand. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir.
2008) (“The formal requirements of a motion to remand and a motion to reopen are
the same.”); see also 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen
“shall state the new facts that will be proven at a hearing to be held if the motion is
granted and shall be supported by affidavits or other evidentiary material”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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