IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 24, 2009
No. 08-60462
Summary Calendar Charles R. Fulbruge III
Clerk
JOSE A AMAYA-ORELLANA,
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A94 025 945
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Jose A. Amaya-Orellana (Amaya), a citizen and native of El Salvador,
seeks review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal and denying his motion to remand the case to the
immigration judge (IJ). Amaya has conceded that he is removable for having
illegally entered the United States. He sought asylum, withholding of removal,
cancellation of removal, and “special rule cancellation” under the Nicaraguan
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-60462
Adjustment and Central American Relief Act (NACARA). The IJ deemed
Amaya’s various claims for relief from removal to have been abandoned because
Amaya’s counsel failed to comply with the IJ’s explicit orders to provide certain
documentation and sworn declarations supporting Amaya’s claims. The IJ
offered Amaya the opportunity to file a timely motion for reconsideration, but
Amaya did not do so.
On appeal to the BIA, where he was represented by new counsel, Amaya
did not directly challenge the IJ’s decision concerning the abandonment of his
claims. Rather, he argued that prior counsel was ineffective for failing to comply
with the IJ’s order. The BIA concluded that Amaya had not satisfied the
requirements of In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), necessary to
establish a claim of ineffective counsel. The BIA further noted that Amaya had
failed to show that he had been prejudiced by counsel’s performance because he
had failed to show any entitlement to relief from removal.
In this court, Amaya, through counsel, concedes that he is not eligible for
cancellation of removal under NACARA, but he contends that the IJ improperly
required him to present sworn evidence with regard to his claims for asylum and
withholding of removal. He argues that the IJ should have allowed him to
proceed with those claims, despite counsel’s failure to provide the documentation
and evidence required for the NACARA claim. Amaya did not raise this issue
before the BIA. Therefore it is unexhausted, and this court lacks jurisdiction to
consider it. See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001); 8 U.S.C.
§ 1252(d)(1). In addition, Amaya has abandoned his claim of ineffective counsel
by failing to brief it. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Amaya’s petition for review is DISMISSED IN PART and DENIED IN
PART.
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