Ernesto Martinez Orendain; Rosa Isela Martinez 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NOT FOR PUBLICATION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
ERNESTO MARTINEZ ORENDAIN;
ROSA ISELA MARTINEZ,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71831
Agency Nos. A097-361-070
A097-361-071
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Ernesto Martinez Orendain and Rosa Isela Martinez, natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) removal order. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law.
FILED
OCT 15 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-71831 2
Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). We dismiss in part and deny
in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that
petitioners failed to show exceptional and extremely unusual hardship to a
qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.
2005). Petitioners’ contention that the agency violated due process by not properly
analyzing their evidence of hardship is not supported by the record and does not
amount to a colorable constitutional claim. See id. at 930 (“[T]raditional abuse of
discretion challenges recast as alleged due process violations do not constitute
colorable constitutional claims that would invoke our jurisdiction.”).
The BIA properly concluded that petitioners failed to establish that their
former counsel had provided ineffective assistance before the IJ where they did not
comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637,
639 (BIA 1988), and the ineffective assistance is not plain on the face of the
record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004).
Petitioners’ due process claim regarding the BIA’s refusal to reinstate their
voluntary departure orders is unavailing.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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