FILED
NOT FOR PUBLICATION APR 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ALEXANDER CHACON, AKA No. 09-72815
Oscar Chacon Ardon,
Agency No. A094-213-022
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Oscar Alexander Chacon, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) denial of his motion to reconsider and reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
*
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).
for abuse of discretion the denial of a motion to reconsider, Mohammed v.
Gonzales, 400 F.3d 785, 791(9th Cir. 2005), and we deny in part and dismiss in
part the petition for review.
The agency did not abuse its discretion in denying Chacon’s motion to
reconsider, where he failed to show any error of law or fact in the IJ’s original
removal order, and has not established that his decision to waive appeal of that
order was not knowing and intelligent, where he was represented by counsel, is
bound by his counsel’s tactical decisions, and did not raise a claim of ineffective
assistance of counsel before the agency. See Magallanes-Damian v. INS, 783 F.2d
931, 934 (9th Cir. 1986), cf. Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir.
2005) (finding an invalid appeal waiver where a pro se petitioner did not
understand the meaning of an appeal). In addition, the agency did not abuse its
discretion in construing Chacon’s motion as a motion to reconsider. See 8 C.F.R.
§ 1003.23(b)(2); Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003) (a motion
to reopen is usually based upon new evidence or a change in factual circumstance,
whereas a motion to reconsider is a request that the agency reexamine its decision
in light of additional legal arguments, a change of law, or an argument or aspect of
the case which was overlooked).
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We lack jurisdiction to consider Chacon’s newly-raised claim of ineffective
assistance of counsel because it is unexhausted. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not
presented in an alien’s administrative proceedings).
In light of this disposition, we do not reach Chacon’s remaining contentions
concerning his eligibility for relief from removal.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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