USCA1 Opinion
April 26, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2241
NARCISA VELASQUEZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Selya, Boudin, and Stahl,
Circuit Judges. ______________
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Martin D. Harris, on brief for appellant. ________________
Frank W. Hunger, Assistant Attorney General, and Robert Kendall, _______________ ________________
Jr., Assistant Director, Office of Immigration Litigation, Civil ___
Division, Department of Justice.
____________________
____________________
Per Curiam. Narcisa Velasquez petitions this court for __________
review of a decision of the Board of Immigration Appeals ("BIA")
denying her motion to reopen her deportation proceedings. For
the following reasons, we deny the petition.
Velasquez is a native and citizen of Ecuador who was
admitted to this country as a lawful permanent resident on May
12, 1988. On April 28, 1994, the INS issued an Order to Show
Cause charging Velasquez with deportability based on two
convictions of crimes of moral turpitude, namely, shoplifting and
welfare fraud. See 8 U.S.C. 1251(a)(2)(A)(ii). A deportation ___
hearing was held before an immigration judge ("IJ") on July 26,
1994, at which Velasquez was represented by an attorney.
Velasquez admitted the convictions but sought a discretionary
waiver under 212(c) of the Immigration and Nationality Act, as
well as suspension of deportation and voluntary departure. The
IJ found that Velasquez was ineligible for any form of relief and
ordered her to be deported to Ecuador. On May 4, 1995, the BIA
dismissed Velasquez's appeal from this decision.
On June 16, 1995, Velasquez filed a motion to reopen the
deportation proceedings to apply for a 212(c) waiver, arguing
that she was now statutorily eligible for such relief. The BIA
denied the motion to reopen on November 9, 1995. This petition
for review followed.
Represented by new counsel, Velasquez argues for the first
time that she was deprived of due process because the IJ failed
to advise her of her eligibility for relief under 212(h) of the
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Act, 8 U.S.C. 1182(h). See 8 C.F.R. 242.17(a). We lack ___
jurisdiction to reach this argument. The exhaustion requirement
that applies in immigration proceedings, see 8 U.S.C. 1105a(c), ___
bars consideration of arguments not raised before the BIA. See ___
Thomas v. INS, 976 F.2d 786, 789 (1st Cir. 1992). Although an ______ ___
exception exists for constitutional challenges to the Immigration
and Nationality Act and INS procedures, a petitioner cannot
obtain review of procedural errors not raised before the
administrative tribunal merely by framing them as due process
violations. See Ravindran v. INS, 976 F.2d 754, 762-63 (1st Cir. ___ _________ ___
1992). Since the BIA could have corrected the deficiency
Velasquez complains of, see id. at 762 (observing that the BIA ___ ___
has the power to remand a case to the IJ to remedy deficiencies
in procedure), she is barred from raising the issue here. We add
that, in any event, our review is limited to the BIA's denial of
the motion to reopen. Velasquez makes no meaningful argument
that this denial was in error. Indeed, she concedes that the
motion to reopen was frivolous.
Velasquez also argues for the first time that she was
deprived of due process by the incompetency of her former
counsel. In particular, she complains that former counsel was
ineffective in failing to raise and pursue a 212(h) waiver at
her deportation hearing, in raising a non-meritorious ground for
relief before the BIA, and in raising an equally frivolous ground
for relief in her motion to reopen. We agree with those courts
that have required petitioners to present ineffective assistance
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of counsel claims to the BIA in the first instance. See, e.g., ___ ____
Liu v. Waters, 55 F.3d 421, 424-26 (9th Cir. 1995); Arango- ___ ______ _______
Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); Castaneda- ________ ___ __________
Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir. 1993); Dokic v. ______ ___ _____
INS, 899 F.2d 530, 532 (6th Cir. 1990). Velasquez may raise her ___
ineffective assistance of counsel argument before the BIA in a
motion to reopen.1 See 8 C.F.R. 3.2, 3.8 (procedures for ___
motion to reopen or reconsider); see also Matter of Lozado, 19 I. ________ ________________
& N. Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988) _____
(establishing guidelines for raising ineffective assistance of
counsel claims before the BIA). Accordingly, the petition for
review is denied and dismissed.
Affirmed. See Loc. R. 27.1. ___
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1We express no opinion on whether or not such a motion would
be frivolous.
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