FILED
NOT FOR PUBLICATION FEB 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO CRUZ-SANCHEZ, No. 11-71333
Petitioner, Agency No. A77-081-520
v.
MEMORANDUM*
ERIC HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Resubmitted February 9, 2015**
Pasadena, California
Before: GILMAN, *** GRABER, and CALLAHAN, Circuit Judges.
Petitioner Gerardo Cruz-Sanchez seeks review of an immigration
judge’s (IJ’s) 2004 order of removal based on the alleged ineffective assistance of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
counsel. The Board of Immigration Appeals (BIA) upheld the IJ’s order in 2005
and again on remand in 2011.
We may review decisions of the BIA only insofar as appellants properly
raised their claims before that board. See Vargas v. INS, 831 F.2d 906, 907-08 (9th
Cir. 1987) (“Failure to raise an issue in an appeal to the BIA constitutes a failure to
exhaust remedies with respect to that question and deprives this court of
jurisdiction to hear the matter.”). By the same token, claims raised before the BIA
but not pursued before this court are also forfeited. See Castro-Martinez v. Holder,
674 F.3d 1073, 1082-83 (9th Cir. 2011) (holding that the petitioner had forfeited
his claim before this court by failing to raise the BIA’s denial of that claim in his
opening brief).
A petitioner seeking to prevail on an ineffective-assistance-of-counsel claim
related to a removal proceeding must show that (a) his attorney failed to represent
him competently, and (b) he had “plausible grounds for relief” that competent
counsel could have raised. Alcala v. Holder, 563 F.3d 1009, 1020 (9th Cir. 2009)
(internal quotation marks and emphasis omitted).
When this case was on remand to the BIA in 2011, Cruz-Sanchez argued to
the BIA that he was prejudiced by the ineffective assistance of counsel in his
hearing before the IJ in 2004 because he was deprived of the opportunity to
demonstrate his eligibility for cancellation of removal under INA § 240A(a).
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Cruz-Sanchez’s attorney failed to appear for that hearing. The IJ proceeded with
the hearing in the attorney’s absence because Cruz-Sanchez had neither filed an
application for relief nor submitted a brief on his theory of why the removal
proceedings should be terminated. The IJ found that there was no legitimate
justification for a further delay given the fact that Cruz-Sanchez had already been
afforded numerous extensions.
But Cruz-Sanchez’s ineffective-assistance argument based on § 240A(a)
does not appear in Cruz-Sanchez’s opening brief to this court. Instead, Cruz-
Sanchez offers a different line of reasoning for the first time: he claims that if he
had been represented by counsel, he would have sought an adjustment of status.
This claim was never presented to the BIA.
Because the only argument regarding alleged prejudice in Cruz-Sanchez’s
opening brief was not raised below, we lack jurisdiction to consider that argument
on review. See Vargas, 831 F.2d at 907-08. Similarly, we may not consider the
sole argument presented to (and dismissed by) the BIA because Cruz-Sanchez
failed to pursue it in his opening brief before this court. See Castro-Martinez, 674
F.3d at 1082-83.
Petition DISMISSED.
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