Samayoa v. Ashcroft , 73 F. App'x 932 ( 2003 )

MEMORANDUM ^**

Mariano Arizandieta Samayoa, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

The IJ found Samayoa ineligible for relief after determining that he was not credible. Samayoa has waived any challenge to the credibility finding because he did not raise this issue in his opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). The credibility finding is dispositive of the issue whether Samayoa established eligibility for relief. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997) (stating that an applicant must establish eligibility by credible, direct and specific evidence). Accordingly, we deny this portion of the petition for review.

Samayoa also argues in his petition for review that counsel at his removal hearing provided ineffective assistance. Samayoa never raised this issue before the BIA and therefore has not exhausted his administrative remedies. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (‘We ... require an alien who argues ineffective assistance of counsel to exhaust his administrative remedies by first presenting the issue to the BIA.”). Accordingly, we dismiss this portion of the petition for lack of jurisdiction.

PETITION FOR REVIEW DENIED in part, and DISMISSED in part.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.