Rogelio Conchas-Fernandez v. Eric H. Holder Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROGELIO CONCHAS-FERNANDEZ, No. 08-73855
Petitioner, Agency No. A092-294-084
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
Rogelio Conchas-Fernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
accept an untimely brief. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the BIA’s rejection of an untimely brief, Zetino v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Holder, 622 F.3d 1007, 1012 (9th Cir. 2010), and we deny in part and dismiss in
part the petition for review.
The BIA was within its discretion in declining to accept Conchas-
Fernandez’s untimely brief. See Zetino, 622 F.3d at 1013 (concluding the
applicable regulations indicate the BIA “could have considered” the brief, but it
was under no obligation to do so, and the BIA did not act arbitrarily, irrationally,
or contrary to the law in denying it). Conchas-Fernandez’s contentions that the
BIA did not adequately explain its reason for declining to accept the untimely brief
or address his ineffective assistance of counsel claim are belied by the record. Cf.
Garcia-Gomez v. Gonzales, 498 F.3d 1050, 1051 (9th Cir. 2007).
We lack jurisdiction to review Conchas-Fernandez’s contentions regarding
eligibility for a 212(c) waiver and voluntary departure because he failed to raise
these issues before the BIA and thereby failed to exhaust his administrative
remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-73855