Renteria De Torres v. Holder
Opinion
Opinion
MEMORANDUM
Justo Enrique Gomez Hernandez and Gabriela Gomez Hernandez, husband and wife and natives and citizens of Mexico, petition for review of the Board of 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).