Opinion
No. 12-70479
02-10-2016
JORGE ALBERT MEJIA RIVERA, AKA Jorge Mejia, AKA Jorge Mejia Riveria Petitioner, v. LORETTA LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A 093-370-617 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 8, 2016 Pasadena, California Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ, Senior District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. --------
Jorge Alberto Mejia Rivera, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals's ("BIA") decision adopting and affirming an Immigration Judge's ("IJ") denial of his application for relief under the Convention Against Torture ("CAT"). We deny in part and dismiss in part the petition for review.
For the first time before this court Rivera asserts two arguments: one, that counsel below, who represented Rivera in both IJ and BIA proceedings, furnished ineffective assistance of counsel by failing to advise Rivera that he could have sought a suspension of deportation; and two, that the IJ erred when he retroactively applied standards of cancellation of removal, instead of suspension of deportation, to find petitioner ineligible for discretionary relief. First, we lack jurisdiction to review Rivera's new claims because he did not raise either with the BIA or IJ, and accordingly, he has failed to exhaust his administrative remedies. See Ontiveros-Lopez v. I.N.S., 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.").
Second, Rivera fails to challenge the BIA's only finding-that Rivera was ineligible for CAT protection. Thus, he waives the only issue on appeal, and we deny in part the petition for review. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir. 1996) (holding that issues not discussed in the opening brief are waived).
We stay the mandate of this court for 90 days from the date this disposition is filed, absent further order of this court, to allow Rivera an opportunity to file a motion to reopen with the BIA with respect to his new claims.
DISMISSED IN PART AND DENIED IN PART.