Tomas Ayala-Ponce; Angelica Ayala Montesino; Amador Ayala Montesino 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMAS AYALA-PONCE; ANGELICA
AYALA MONTESINO; AMADOR
AYALA MONTESINO,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-71330
Agency Nos. A095-175-416
A095-175-417
A095-175-418
MEMORANDUM*
TOMAS AYALA-PONCE,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72132
Agency No. A095-175-416
On Petitions for Review of Orders of the
Board of Immigration Appeals
FILED
AUG 25 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
08-71330 2
Submitted August 10, 2010**
Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges.
In these consolidated petitions for review, Tomas Ayala-Ponce, Angelica
Ayala Montesino, and Amador Ayala Montesino, natives and citizens of Mexico,
petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying
their motions to reopen removal proceedings. We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to reopen and de
novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny both petitions for review.
In the opening brief, petitioners fail to address, and thereby waive any
challenge to, the BIA’s order denying their second motion to reopen. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived).
The BIAdid not abuse its discretion by denying Ayala-Ponce’s third motion
to reopen. Ayala-Ponce failed to establish that his former counsel did not perform
with sufficient competence during proceedings because Ayala-Ponce did not
become eligible to adjust his status until after the deadline for filing a motion to

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08-71330 3
reopen had expired. See Mohammed, 40 F.3d at 793 (petitioner must demonstrate
first that counsel failed to perform with sufficient competence, and, second, that he
was prejudiced by counsel’s performance). It follows that Ayala-Ponce’s due
process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error to establish due process claim).
PETITIONS FOR REVIEW DENIED.

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