dissenting:
I concur with my colleagues’ rejection of Granados-Oseguera’s equal protection claim. I must dissent, however, from their expansion of our jurisdiction — in contravention of our precedents — to reach an ineffective assistance of counsel claim that has never been raised before the Board of Immigration Appeals (BIA) and is not supported by substantial evidence.
On September 6, 2002, the BIA summarily affirmed the IJ’s decision denying Granados-Oseguera’s application for cancellation of removal. The IJ allowed him 30 days in which to voluntarily depart the country, and warned that his failure to depart would undermine any chance he might have of re-entry for ten years. The petitioner did not depart the country within the allotted time. He did not file anything with the BIA, or any court until December 6, 2002, when he filed a motion to reopen with the BIA “so that he could continue to apply for labor certification in the United States.” His supplement to the motion to reopen requested that his failure to leave the country be excused because his father and daughter became ill during the period for voluntary departure. On July 23, 2003, the BIA denied the motion to reopen holding that the petitioner’s failure to voluntarily depart barred him from the requested relief. The petitioner did not assert ineffective assistance of counsel before the BIA and no such contention is mentioned in the BIA’s order.
We have explicitly held that an ineffective assistance of counsel claim in an immigration case must first be raised in the form of a motion to reopen before the BIA:
We generally will not consider a claim of error that the BIA has not first been given the opportunity to correct because to do so deprives us of the benefit of the agency’s expertise and a fully developed record. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985). We therefore require an alien who argues ineffective assistance of counsel to exhaust his administrative remedies by *1000first presenting the issue to the BIA. See id.; see also Liu v. Waters, 55 F.3d 421, 426 (9th Cir.1995).
Ontiveros-Lopez filed his first petition before he properly exhausted his ineffective assistance of counsel claim before the BIA. The first petition appeals the BIA’s affirmance of the deportation order based on his prior counsel’s concession of .Ontiveros-Lopez’s deportability and his statutory ineligibility for relief. While we could review that ruling for its soundness, Ontiveros-Lopez instead urges us to grant relief on the basis of ineffective assistance of counsel. This we cannot do. Ontiveros-Lopez’s direct appeal of the IJ’s deportation order to the BIA did not present ineffective assistance of counsel as a ground for relief, and the BIA did not have the opportunity to develop a record and pass on the issue. We therefore deny the first petition for its failure to satisfy the administrative exhaustion requirement.
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). Thus, as Granados-Oseguera filed his petition for review “before he properly exhausted his ineffective assistance of counsel claim before the BIA,” we should deny the petition “for its failure to satisfy the administrative exhaustion requirement.” Id.
The majority seeks to avoid this conclusion by contending that the petition for review is Granados-Oseguera’s first opportunity to raise his ineffective assistance of counsel claim and that the claim asserts a due process violation. Neither reason justifies the majority’s expansion of our jurisdiction. It makes little sense to suggest that the exhaustion of administrative remedies requirement does not apply whenever a petitioner alleges that he could not have raised it before the agency. This is particularly true where, as here, the alleged inability was not the result of any agency action or rule, but because petitioner continued to be represented by the same attorney.
The majority’s perspective is inconsistent with our opinion in Ray v. Gonzales, 439 F.3d 582 (9th Cir.2006). In that case, Ray filed a first and then a second motion to reopen with the BIA alleging that he was the victim of ineffective assistance of counsel. Id. at 584-85. The BIA denied Ray’s second motion as untimely and numerically barred. Id. at 586. On the petition for review from the denial of his second motion, we held that because “Ray was denied due process as a result of his attorney’s deficient and detrimental performance, ... the BIA abused its discretion by refusing to toll the numerical and procedural bars to his second motion,” Id. at 590.1 If a petitioner may file another motion to reopen before the BIA, we need not be concerned with his alleged inability to raise the issue before the BIA in a prior proceeding.2
*1001Our opinion in Ray also reveals the majority’s assertion — that we have jurisdiction because the petitioner alleges a violation of due process — would eviscerate our requirement that an ineffective assistance of counsel claim must be first asserted before the BIA. In Ray, we wrote:
Federal law guarantees an alien the right to obtain counsel of his own choice in “any removal proceedings before an immigration judge,” 8 U.S.C. § 1362, and we have explained that this statutory provision stems from a constitutional guarantee of due process, see Rios-Berrios v. INS, 776 F.2d 859, 862 (1985). See also Iturribarria v. INS, 321 F.3d 889, 899(9th Cir.2003) (“In deportation proceedings, an alien’s right to be represented by counsel is based on the due process guarantees of the Fifth Amendment.”). Further, this Circuit has long recognized that an alien’s due process right to obtain counsel in immigration matters also includes a right to competent representation from a retained attorney. Because due process requires more than the formal availability of counsel, we have held that an alien is denied due process when his attorney provides ineffective assistance. See, e.g., Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226-27 (9th Cir.2002); Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000); see also Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985). “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez, 775 F.2d at 1017.
439 F.3d at 587 (emphasis in original). It follows that creating an exception for a due process claim would obliterate the rule that an ineffective assistance of counsel claim must first be raised before the BIA.3
Moreover, the majority’s approach to Granados-Oseguera’s claim places the proverbial cart before the horse by concluding that we have jurisdiction before examining the factual basis for the claim. In Ray, we recognized that a claim of ineffective assistance of counsel could be a valid basis for a motion to reopen. Id. at 585. However, Ray had raised his claim before the BIA. Furthermore, we determined that Ray had made a persuasive and factually supported claim of ineffective assistance before remanding to the BIA.4 The majority here, however, fails to hold petitioner to the evidentiary standard that underlies our decision in Ray, a standard designed to guard against petitioners making unsupported claims of ineffective assistance of counsel.
*1002We have reiterated that in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), the BIA held:
[A]n alien alleging ineffective assistance of counsel must: (1) submit an affidavit demonstrating and explaining his agreement with prior counsel regarding legal representation, (2) submit evidence that he has informed prior counsel of the allegations of ineffective assistance and provided the attorney with an opportunity to respond, and (3) file a complaint against the attorney with proper disciplinary authorities or explain why such a complaint has not been filed.
Ray, 439 F.3d at 588-89. We have consistently endorsed the Lozada requirements, while recognizing that they are not sacrosanct. In Castillo-Perez, we noted first “that the Lozada requirements are generally reasonable, and under ordinary circumstances the BIA does not abuse its discretion when it denies a motion to remand or reopen based on alleged ineffective assistance of counsel where the petitioner fails to meet the requirements of Lozada.” 212 F.3d at 525. We then stated that a failure to comply with the Loza-da requirements is not necessarily fatal where the facts showing ineffective assistance of counsel are “plain on the face of the administrative record.” Id. (citing Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000)). Aso, in Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226-27 (9th Cir.2002), we reiterated our statement in Castillo-Perez that the Lozada requirements are “intended to ensure both that an adequate factual basis exists in the record for an ineffectiveness complaint and that the complaint is a legitimate and substantial one.” 212 F.3d at 526.
The majority, however, attempts to brush aside the Lozada requirements by stating that we have not insisted on strict compliance with these requirements where the record shows a “clear and obvious case of ineffective assistance of counsel.” This overstatement of our precedent fails to appreciate the difference between strict compliance with Lozada and making no attempt to procure the information provided by the Lozada requirements.5 In our ease, the claim of ineffective assistance of counsel is not clear on the face of the administrative record. Instead, this case illustrates that without evidence of a petitioner’s actual relationship with his attorney (the type of information provided by the Lozada requirements) there is no factual basis for the claim of ineffective assistance of counsel.
The pro se petition before us seeks review of the BIA’s denial of the petitioner’s motion to reopen, which was based on his application for a labor certificate. It was only when new counsel was appointed to represent the petitioner that an allegation of ineffective assistance of counsel was put forward. Athough the record contains no evidence concerning Granados-Oseguera’s *1003actual relationship and communications with his attorney in September. 2002, the majority perceives a clear case of ineffective assistance of counsel from the following cold facts: (1) on September 6, 2002, the BIA summarily affirmed the IJ’s decision, allowed the petitioner 30 days in which to voluntarily depart the country, and warned him that his failure to depart would undermine any chance of re-entry for ten years, and (2) the petitioner did not, within those 30 days, depart the country or seek relief from either the BIA or a court. The majority concludes that the consequences of Granados-Oseguera’s failure to depart and failure to file a petition or motion are so draconian that the only possible explanation must be ineffective assistance by the attorney.
Although such speculation may explain Granados-Oseguera’s inaction, there are many other possible explanations.6 What is missing is any evidence addressing at least the first two Lozada requirements. What agreement (if any) did Granados-Oseguera have with his attorney during the critical 30-day period for departure? Has the petitioner’s former attorney been informed of the allegation and what explanation, if any, does he have for his alleged inaction? As there is no evidence before us concerning the actual relationship (or lack thereof), there is no factual basis for Granados-Oseguera’s claim of ineffective assistance of counsel.
I recognize that despite its conviction as to Granados-Oseguera’s claim, the majority refrains from ruling on the claim, and remands the matter to the BIA for a ruling on its merits. I also note that the majority concedes that the BIA may require that the petitioner’s claim of ineffective assistance of counsel address the Lozada factors. Nonetheless, as the majority contravenes controlling precedent by expanding our jurisdiction to cover an issue not raised before the BIA and not factually supported, I respectfully dissent.
. Moreover, Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, (9th Cir.2000), which was cited in Ray, suggests that despite the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, an alien may file a habeas petition alleging ineffective assistance of counsel in his or her immigration proceedings. Id. at 1044; see also Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir.2001) (holding that a district court had jurisdiction to consider a habeas petition alleging ineffective assistance of counsel in an immigration proceeding when the petitioner is threatened with immediate deportation). But see Goonsuwan v. Ashcroft, 252 F.3d 383, 388 (5th Cir.2001) (holding that the petitioner's "failure to raise his ineffective assistance of counsel claim before the BIA deprived the district court of jurisdiction to hear the issue”).
. Although I do not agree with the majority's reasoning in footnote 6 that because "this case was pre-Ray ” petitioner may allege ineffective assistance of counsel for the first time in his petition before this court, I read the distinction as questioning the application of *1001the majority’s assertion of jurisdiction in this case to any post-Ray case.
. The majority’s citation of Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985), cannot vitalize its argument on jurisdiction. In that case, petitioners did not advance an ineffective assistance of counsel claim. Instead the petition for review advanced due process and retroactivity issues that had not been raised in the administrative proceedings. Id. at 484. Nonetheless, we addressed the arguments, and rejected them on the merits, noting that the BIA had no jurisdiction to adjudicate petitioners' constitutional issues, and the due process claims did not concern procedural errors correctable by the BIA. Id. Furthermore, the scope of the ambiguous statement concerning jurisdiction in Bagues-Valles is limited by our clear statement in Ontiveros-Lopez concerning our jurisdiction to review ineffective assistance of counsel claims. 213 F.3d at 1124.
. We noted that Ray’s attorneys “prevented Ray not only from 'reasonably presenting his case,' but from presenting his case at all," and that Ray had “also fully satisfied the Lozada requirements.” 439 F.3d at 588-89 (emphasis in original).
. The three cases cited by the majority either do not support dispensing with the Lozada requirements, or turn on the existence of information — that would otherwise be furnished by complying with Lozada — in the administrative records. In Rodriguez-Lariz, we noted that petitioner had "substantially complied with the Lozada factors.” 282 F.3d at 1227. In Castillo-Perez, we excused formal compliance with the Lozada requirements, noting that "the record of the proceedings themselves is more than adequate to serve those functions” and "there has been substantial compliance with the rule.” 212 F.3d at 526. The third case, Escobar-Grijalva, is inapposite as it concerned an IJ forcing a petitioner to be represented by an attorney she had never met. We held that the BIA's "reasonable rules for the normal ineffective assistance claim” were not dispositive because the "facts are plain on the face of the administrative record” and there was no need of an affidavit to establish them. 206 F.3d at 1335.
. Although it is no less speculative than the majority’s conclusion, another explanation— which is consistent with the filings in this case — is that Granados-Oseguera intended to depart within the 30 days, but did not do so because of his father’s and daughter’s illnesses (this is what he claimed in his motion to reopen filed with the BIA), and did not contact his attorney.