Barbara Hernandez Espinoza 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 finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA HERNANDEZ ESPINOZA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
Nos. 06-74247
07-70073
Agency No. A079-519-897
MEMORANDUM *
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
In No. 06-74247, Barbara Hernandez Espinoza, 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 her
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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application for cancellation of removal, and denying her claim of ineffective
assistance of counsel. In No. 07-70073, Hernandez Espinoza petitions for review
of the BIA’s order denying her motion to reconsider. Our jurisdiction is governed
by 8 U.S.C. § 1252. We review de novo questions of law and claims of due
process violations, including those due to ineffective assistance of counsel, and we
review for abuse of discretion the denial of motions to reopen and reconsider.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We dismiss in part
and deny in part the petition for review in No. 06-74247, and we deny the petition
for review in No. 07-70073.
We lack jurisdiction to review the agency’s discretionary determination that
Hernandez Espinoza failed to show exceptional and extremely unusual hardship to
a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005). Hernandez Espinoza’s contention that the agency legally erred and
deprived her of due process by misapplying the law to the facts of her case does
not state a colorable claim. See id. (“[T]raditional abuse of discretion challenges
recast as alleged due process violations do not constitute colorable constitutional
claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255
F.3d 775, 779 (9th Cir. 2001) (“misapplication of case law” may not be reviewed).
Contrary to Hernandez Espinoza’s contention, the agency provided a reasoned

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explanation of its decision denying her application for cancellation of removal.
See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). To the extent
Hernandez Espinoza contends that the agency violated due process by failing to
consider all of her evidence of hardship, the proceedings were not “so
fundamentally unfair that [she] was prevented from reasonably presenting [her]
case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (citation and internal
quotation marks omitted).
We agree that Hernandez Espinoza failed to demonstrate that prior counsels’
representation resulted in prejudice, and thus her ineffective assistance of counsel
claim fails. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003)
(petitioner must demonstrate prejudice to prevail on an ineffective assistance of
counsel claim).
The BIA did not abuse its discretion in denying Hernandez Espinoza’s motion
to reconsider because the motion failed to identify any error of fact or law in the
BIA’s underlying July 31, 2006, order. See 8 C.F.R. § 1003.2(b)(1);
Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc).
We do not consider contentions Hernandez Espinoza seeks to introduce in her
reply brief to the extent that they make a new “offer of proof” as to hardship that

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was not before the agency. See Chouchkov v. INS, 220 F.3d 1077, 1080 (9th Cir.
2000) (review limited to the administrative record).
Respondent’s motion to strike is denied as moot.
In No. 06-74247: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
In No. 07-70073: PETITION FOR REVIEW DENIED.

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