NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 10 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JORGE ALBERT MEJIA RIVERA, AKA No. 12-70479
Jorge Mejia, AKA Jorge Mejia Riveria
Agency No. A 093-370-617
Petitioner,
v.
MEMORANDUM*
LORETTA LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
Submitted January 8, 2016**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior
District Judge.
Jorge Alberto Mejia Rivera, a native and citizen of Honduras, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision adopting and
*
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).
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Page 2 of 3
affirming an Immigration Judge’s (“IJ”) denial of his application for relief under
the Convention Against Torture (“CAT”). We deny in part and dismiss in part the
petition for review.
For the first time before this court Rivera asserts two arguments: one, that
counsel below, who represented Rivera in both IJ and BIA proceedings, furnished
ineffective assistance of counsel by failing to advise Rivera that he could have
sought a suspension of deportation; and two, that the IJ erred when he retroactively
applied standards of cancellation of removal, instead of suspension of deportation,
to find petitioner ineligible for discretionary relief. First, we lack jurisdiction to
review Rivera’s new claims because he did not raise either with the BIA or IJ, and
accordingly, he has failed to exhaust his administrative remedies. See
Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1124 (9th Cir. 2000) (“We . . . require an
alien who argues ineffective assistance of counsel to exhaust his administrative
remedies by first presenting the issue to the BIA.”).
Second, Rivera fails to challenge the BIA’s only finding–that Rivera was
ineligible for CAT protection. Thus, he waives the only issue on appeal, and we
deny in part the petition for review. See Martinez-Serrano v. I.N.S., 94 F.3d 1256,
1259-60 (9th Cir. 1996) (holding that issues not discussed in the opening brief are
waived).
Page 3 of 3
We stay the mandate of this court for 90 days from the date this disposition
is filed, absent further order of this court, to allow Rivera an opportunity to file a
motion to reopen with the BIA with respect to his new claims.
DISMISSED IN PART AND DENIED IN PART.