NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2014*
Decided November 4, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐1820
DE HANG CHEN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A099 605 222
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
De Hang Chen, a Chinese citizen, petitions for review from the denial of his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture. We dismiss the petition for lack of jurisdiction.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the petition is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14‐1820 Page 2
Chen entered the United States without inspection, conceded his removability
before an immigration judge, and, through counsel, sought asylum and related relief
based on his wife’s forced abortion, see 8 U.S.C. § 1101(a)(42). Chen acquired new
counsel before his merits hearing, where he testified that his wife had been forced to
undergo an abortion and that twice he had scuffled with a local village official in his
native Fujian province. The IJ denied relief, finding Chen not credible—based on key
inconsistencies between his testimony and written submissions—and his evidence
insufficient to corroborate his testimony.
In his appeal to the Board of Immigration Appeals, Chen, through the same
counsel, primarily challenged the adverse credibility finding, and he noted in one
sentence that his application did not mention the altercations with the local official at
his first lawyer’s suggestion. The Board dismissed Chen’s appeal, adding in a footnote
that his contention about his first lawyer’s advice “lack[ed] support in the record”
because Chen had not asserted any claim of ineffective assistance.
Now represented by a third lawyer, Chen petitions for review before this court,
arguing that his second lawyer ineffectively assisted him by not submitting an updated
application or corroborating evidence and by not asking him to clarify his inconsistent
testimony. But we lack jurisdiction to consider any claim relating to the alleged
ineffective assistance of Chen’s second counsel because Chen did not exhaust his
administrative remedies before seeking judicial review. See 8 U.S.C. § 1252(d)(1); Singh
v. Holder, 720 F.3d 635, 640 (7th Cir. 2013). Before presenting his ineffective‐assistance
claim to us, Chen first needed to present it to the Board, as in a motion to reopen, see 8
U.S.C. § 1229a(c)(7); United States v. Arita‐Campos, 607 F.3d 487, 491–92 (7th Cir. 2010);
such a motion would have allowed the Board to consider whether his second lawyer
was ineffective, see Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Although an
issue is deemed exhausted if the Board addresses it on its own, see Arobelidze v. Holder,
653 F.3d 513, 517 (7th Cir. 2011), the Board’s allusion in its footnote to the absence of a
claim in no way constitutes exhaustion, see Tian v. Holder, 745 F.3d 822, 826 (7th Cir.
2014), and in any event Chen’s reference before the Board was to his first lawyer, not
the second lawyer of whom he complains here.
DISMISSED.