Ana Elias-De Aleman v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2023
• Docket: 18-71963
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA RUTH ELIAS-DE ALEMAN; No. 18-71963 ULISES ADONAY ALEMAN-ELIAS, Agency Nos. A208-537-260 Petitioners, A208-537-261

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 21, 2023**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Ana Ruth Elias-De Aleman and Ulises Adonay Aleman-Elias, natives and

citizens of El Salvador, petition for review of the Board of Immigration Appeals’

(“BIA”) order dismissing their appeal from the Immigration Judge’s (“IJ”) decision

denying their applications for asylum, withholding of removal, and relief under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (“CAT”). Petitioners claim only that their BIA appeal

was tainted by ineffective assistance of counsel. Petitioners make no other claim for

relief before this court. We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

Petitioners raise their ineffective assistance of counsel claim in the first

instance in this court. Generally, ineffective assistance of counsel claims cannot be

brought without meeting the exhaustion requirement. See Barron v. Ashcroft, 358

F.3d 674, 678 (9th Cir. 2004) (holding that § 1252(d)(1) “generally bars us, for lack

of subject-matter jurisdiction, from reaching the merits of a legal claim not presented

in administrative proceedings below”); Vilchiz-Soto v. Holder, 688 F.3d 642, 644

(9th Cir. 2012) (“[T]o the extent petitioners contend they received ineffective

assistance of counsel, we lack jurisdiction to review unexhausted claims that could

have been corrected by the BIA.”); Singh v. Gonzales, 499 F.3d 969, 973 (9th Cir.

2007); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Liu v. Waters, 55 F.3d

421, 424 (9th Cir. 1995) (“A petitioner must make a motion for the [Board] to reopen

before we will hold that he has exhausted his [ineffective assistance] claims.”). As

such, this court lacks jurisdiction to review the Petitioners’ claim. Id.

DENIED.