De Lira-Saucedo v. Holder , 314 F. App'x 632 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 16, 2009
No. 08-60356
Summary Calendar Charles R. Fulbruge III
Clerk
ANDRES DE LIRA-SAUCEDO; MARIA DELORES DE LIRA-ROJAS
Petitioners
v.
ERIC H. HOLDER, JR., U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A93 471 970
BIA No. A93 471 972
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mexican citizens Andres De Lira-Saucedo and Maria Delores De Lira-
Rojas seek review of the decision of the Board of Immigration Appeals (BIA)
denying their motion to remand and affirming the denial of their application for
cancellation of removal based on alleged hardship to their children, who are
United States citizens. The Petitioners argue that the BIA erred because
counsel rendered ineffective assistance by failing to establish the requisite level
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60356
of hardship, including their claim that their youngest child’s medical condition
requires yearly follow up at a medical facility in California. The Petitioners also
argue that counsel rendered ineffective assistance by failing to seek a change of
venue, which would have enabled them to present medical evidence concerning
their daughter’s medical condition. The Petitioners rely upon precedent in which
this court has assumed, without deciding, that an alien’s claim of ineffective
assistance may implicate due process concerns under the Fifth Amendment. See
Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Assaad v. Ashcroft, 378 F.3d
471, 475-76 and n.2 (5th Cir. 2004).
This court does not have jurisdiction to review the underlying order
denying relief because the determination that the Petitioners did not qualify for
relief from removal under the hardship provisions of 8 U.S.C. § 1229b(b)(1)(D)
was a discretionary determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). Because the Petitioners’ claims of
attorney ineffectiveness relate solely to the denial of discretionary relief, their
claims do not amount to a due process violation. Assaad, 378 F.3d at 474-76.
In light of the foregoing, the petition for review is DISMISSED.
2