Molinero v. Ashcroft

111 F. App'x 956

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2004
• Docket: No. 03-7202
• Status: Published

Opinion

MEMORANDUM

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Jorge Tinoco-Molinero, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance, without opinion, of an immigration judge’s denial of his application for cancellation of removal. We dismiss the petition for review.

Although Tinoco-Molinero’s case may have been prejudiced by his original counsel, we lack jurisdiction to review his ineffective assistance of counsel claim because his new counsel failed to present this claim to the BIA in a motion to reopen. See 8 U.S.C. § 1252(d); 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”).

We stay the mandate for 90 days from the date this disposition is filed to allow Molinero the opportunity to file a motion to reopen with the BIA regarding the ineffective assistance of his original counsel, as well as the ineffective assistance of his appellate counsel.

PETITION FOR REVIEW DISMISSED; MANDATE STAYED FOR 90 DAYS.

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