FILED
NOT FOR PUBLICATION JUL 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA CARDENAS DE No. 07-73072
CASTANEDA; FRANCISCO
CASTANEDA CARDENAS; HUBER Agency Nos. A095-194-893
CASTANEDA CARDENAS; REYNA A095-447-210
CASTANEDA CARDENAS, A095-449-448
A095-449-449
Petitioners,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2011
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Margarita Cardenas de Castaneda and three of her children, all natives and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
citizens of Mexico, petition for review of a BIA decision denying their motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Petitioners failed to exhaust their sole claim, ineffective assistance of
counsel, by raising that issue before the BIA in a motion to reopen. As a prudential
matter, when such claims relate to attorney conduct that occurred prior to and
during the removal proceedings, as they do here, “the BIA [is] the appropriate
body to first pass on the claims in order to generate a proper record for review.”
Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Though petitioners may not
have realized they had such a claim until their new counsel was appointed, the
period to file a motion to reopen may be equitably tolled during periods where
petitioners are receiving ineffective assistance of counsel. Iturribarria v. INS, 321
F.3d 889, 898 (9th Cir. 2003). We therefore deny the petition.
DENIED.