Chaparro v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1532
ISMAEL ENRIQUE JIMENEZ CHAPARRO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 11, 2010 Decided: February 4, 2010
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Ivan Yacub, YACUB LAW OFFICES, Falls Church, Virginia, for
Petitioner. Tony West, Assistant Attorney General, John W.
Blakeley, Carol Federighi, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ismael Enrique Jimenez Chaparro, a native and citizen
of Colombia, petitions for review of the Board of Immigration
Appeals’ (“Board”) order denying in part Chaparro’s motion for
reconsideration of the Board’s order affirming the immigration
judge’s (“IJ”) order of removal.
Chaparro challenges the IJ’s conclusion that he was
removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), due
to his 1993 Virginia conviction for a crime involving moral
turpitude (sexual battery), and 8 U.S.C. § 1182(a)(6)(C)(i)
(2006), due to Chaparro’s fraudulent or willful
misrepresentations of material fact in his 1993 visa
application. Neither of these issues was raised in Chaparro’s
direct appeal to the Board, and only the former issue was raised
in Chaparro’s motion for reconsideration. Because the former
claim was “based on a legal argument that could have been raised
earlier in the proceedings,” Matter of O-S-G-, 24 I. & N. Dec.
56, 58 (B.I.A. 2006), the Board declined to consider it on
Chaparro’s motion for reconsideration.
We may review a final order of removal only if “the
alien has exhausted all administrative remedies available to the
alien as of right.” 8 U.S.C. § 1252(d)(1) (2006). This court
has interpreted this provision to operate as a jurisdictional
bar in that “an alien’s failure to dispute an issue on appeal to
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the [Board] constitutes a failure to exhaust administrative
remedies that bars judicial review.” Massis v. Mukasey, 549
F.3d 631, 638 (4th Cir. 2008), cert. denied, ___ U.S. ___, 2009
WL 1321022 (U.S. Nov. 30, 2009) (No. 08-1392).
Because neither of these claims has been
administratively exhausted, we lack jurisdiction to consider
them. See Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009)
(holding that “improperly raising an issue for the first time in
a motion for reconsideration does not satisfy [8 U.S.C.]
§ 1252(d)’s exhaustion requirement”); Massis, 549 F.3d at 638;
Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).
Accordingly, we dismiss the petition for review as to these two
claims for lack of jurisdiction.
Chaparro raises two additional issues in his petition
for review. First, Chaparro asserts that he remains a lawful
permanent resident of the United States. However, Chaparro’s
residency status was not an issue in dispute in the
administrative proceedings. * Accordingly, we deny the petition
for review as to this issue.
Chaparro next posits the Board should have considered
the issues raised for the first time in his motion for
*
As the Attorney General correctly notes, neither the IJ
nor the Board ruled that Chaparro was not a lawful permanent
resident.
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reconsideration, because his attorney was ineffective for not
raising them in his direct appeal to the Board, and this court’s
opinion in Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008),
vacated, 130 S. Ct. 350 (2009), precluded Chaparro from filing a
motion to reopen based on this alleged ineffective
representation.
We agree with the Attorney General that, despite our
holding in Afanwi that there is no Fifth Amendment right to
effective representation of counsel in removal proceedings, 526
F.3d at 798, a motion to reopen based on counsel’s alleged
ineffectiveness remained a viable avenue for relief at the time
Chaparro filed his motion for reconsideration. The Attorney
General’s opinion in Matter of Compean, 24 I. & N. Dec. 710,
731-39 (A.G. Jan. 7, 2009), setting forth the mandatory legal
standards and evidentiary requirements for such discretionary
reopening, and revised opinion in Matter of Compean, 25 I. & N.
Dec. 1 (A.G. June 3, 2009), support this conclusion.
For the foregoing reasons, we dismiss the petition for
review in part and deny it in part. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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