Velasquez v. INS ( 1996 )

USCA1 Opinion

          April 26, 1996        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-2241



                                  NARCISA VELASQUEZ,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.





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                           PETITION FOR REVIEW OF AN ORDER

                         OF THE BOARD OF IMMIGRATION APPEALS





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                                        Before



                               Selya, Boudin, and Stahl,

                                   Circuit Judges.
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            Martin D. Harris, on brief for appellant.
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            Frank W. Hunger,  Assistant Attorney General, and Robert  Kendall,
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        Jr.,  Assistant Director,  Office  of  Immigration  Litigation,  Civil
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        Division, Department of Justice.





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                    Per Curiam.  Narcisa Velasquez petitions this court for
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          review  of a decision of the Board of Immigration Appeals ("BIA")



          denying her  motion to reopen  her deportation proceedings.   For



          the following reasons, we deny the petition.



               Velasquez  is  a  native  and  citizen  of Ecuador  who  was



          admitted  to this country as  a lawful permanent  resident on May



          12,  1988.  On  April 28, 1994,  the INS issued  an Order to Show



          Cause  charging   Velasquez  with  deportability  based   on  two



          convictions of crimes of moral turpitude, namely, shoplifting and



          welfare  fraud.  See 8 U.S.C.   1251(a)(2)(A)(ii).  A deportation
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          hearing was held before  an immigration judge ("IJ") on  July 26,



          1994,  at  which  Velasquez   was  represented  by  an  attorney.



          Velasquez admitted  the convictions  but  sought a  discretionary



          waiver  under   212(c) of the Immigration and Nationality Act, as



          well as suspension of  deportation and voluntary departure.   The



          IJ found that Velasquez was ineligible for any form of relief and



          ordered her to be deported  to Ecuador.  On May 4,  1995, the BIA



          dismissed Velasquez's appeal from this decision.



               On June 16,  1995, Velasquez  filed a motion  to reopen  the



          deportation proceedings to  apply for a    212(c) waiver, arguing



          that she was now statutorily eligible  for such relief.  The  BIA



          denied the motion to  reopen on November 9, 1995.   This petition



          for review followed.



               Represented by  new counsel, Velasquez argues  for the first



          time that she was deprived  of due process because the IJ  failed



          to advise her of her eligibility for relief under   212(h) of the





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          Act,  8 U.S.C.    1182(h).  See  8 C.F.R.    242.17(a).   We lack
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          jurisdiction to reach this  argument.  The exhaustion requirement



          that applies in immigration proceedings, see 8 U.S.C.   1105a(c),
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          bars consideration of arguments  not raised before the BIA.   See
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          Thomas v.  INS, 976 F.2d 786,  789 (1st Cir. 1992).   Although an
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          exception exists for constitutional challenges to the Immigration



          and  Nationality  Act and  INS  procedures,  a petitioner  cannot



          obtain  review  of  procedural   errors  not  raised  before  the



          administrative  tribunal merely  by framing  them as  due process



          violations.  See Ravindran v. INS, 976 F.2d 754, 762-63 (1st Cir.
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          1992).    Since  the  BIA could  have  corrected  the  deficiency



          Velasquez  complains of, see id.  at 762 (observing  that the BIA
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          has  the power to remand a case  to the IJ to remedy deficiencies



          in procedure), she is barred from raising the issue here.  We add



          that, in any event, our review  is limited to the BIA's denial of



          the motion to  reopen.   Velasquez makes  no meaningful  argument



          that this  denial was in  error.  Indeed,  she concedes  that the



          motion to reopen was frivolous.



               Velasquez  also argues  for  the  first  time that  she  was



          deprived  of  due  process  by the  incompetency  of  her  former



          counsel.   In particular, she  complains that former  counsel was



          ineffective in failing to  raise and pursue a   212(h)  waiver at



          her deportation hearing, in  raising a non-meritorious ground for



          relief before the BIA, and in raising an equally frivolous ground



          for  relief in her motion to reopen.   We agree with those courts



          that have required petitioners to present ineffective  assistance





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          of  counsel claims to the BIA in  the first instance.  See, e.g.,
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          Liu  v.  Waters, 55  F.3d 421,  424-26  (9th Cir.  1995); Arango-
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          Aradondo  v. INS,  13 F.3d  610, 614  (2d Cir.  1994); Castaneda-
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          Suarez v.  INS, 993 F.2d  142, 144-45 (7th  Cir. 1993); Dokic  v.
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          INS, 899  F.2d 530, 532 (6th Cir. 1990).  Velasquez may raise her
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          ineffective assistance  of counsel argument  before the BIA  in a



          motion to  reopen.1   See 8  C.F.R.    3.2,  3.8 (procedures  for
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          motion to reopen or reconsider); see also Matter of Lozado, 19 I.
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          & N.  Dec. 637  (BIA 1988),  aff'd, 857 F.2d  10 (1st  Cir. 1988)
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          (establishing  guidelines for  raising ineffective  assistance of



          counsel claims  before the BIA).   Accordingly, the  petition for



          review is denied and dismissed.



               Affirmed.  See Loc. R. 27.1.
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               1We express no opinion on whether or not such a motion would

          be frivolous.



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