Cisneros-Salinas v. Keisler

249 F. App'x 668

Opinion

MEMORANDUM

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Petitioners Genaro Cisneros-Salinas and Rosalinda Olvera-Martinez, both citizens of Mexico, petition for review of the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (“IJ”) final order of removal and grant of voluntary departure, and rejecting Petitioners’ claim of ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252.

This Court reviews de novo claims of due process violations in immigration proceedings, such as ineffective assistance of counsel. See Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). Ordinarily, the BIA will not consider an ineffective assistance of counsel claim absent compliance with the Lozada requirements. See Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir.2004); Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), affd, 857 F.2d 10 (1st Cir.1988). Although we do not strictly enforce the Lozada requirements, “we have never excused a petitioner’s failure to provide an affidavit where, as here, the facts underlying the petitioner’s claim were not plain on the face of the administrative record.” Reyes, 358 F.3d at 597 (internal quotations omitted). Petitioners did not submit an affidavit to support their claim of ineffective assistance of counsel. Additionally, it is not plain from the face of the record that they received ineffective assistance of counsel. Thus, the BIA did not err in rejecting Petitioners’ ineffective assistance of counsel claim.

Petitioners did not raise them equitable estoppel claim before the BIA and therefore it is not exhausted. Therefore, we lack jurisdiction to consider it. See 8 U.S.C. 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).

Lastly, Petitioners assert that both the IJ and the BIA issued a “boilerplate” opinion which is insufficient for us to conduct our review. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). However, the IJ’s and BIA’s respective opinions indicate that each gave Petitioners’ application the required individual determination and reasoned explanations for their decisions. See id.

Petition for Review DISMISSED in part and DENIED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.