Richard Cote, Petitioner, v. United States Immigration and Naturalization Service, Respondent, 974 F.2d 1341 (9th Cir. 1992)

MEMORANDUM^** 

Richard Cote, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals' ("BIA") order affirming the immigration judge's ("IJ") decision finding Cote deportable under 8 U.S.C. § 1251(a) (11)¹  and denying Cote's request for waiver of deportation. Cote contends that the IJ failed to inform him that he had the right to present witnesses, and that the IJ should have granted a continuance to allow Cote the opportunity to present witnesses. Because Cote failed to raise this issue in his appeal to the BIA, we lack jurisdiction to review his claim and dismiss his petition. See Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987).

An alien's failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust administrative remedies on that issue and "deprives this court of jurisdiction to hear the matter." Id. Due process claims are exempt from this procedural rule because the BIA does not have jurisdiction to adjudicate constitutional issues. Id. Nevertheless, if the due process claim involves "procedural errors correctable by the administrative tribunal," then the petitioner must exhaust the claim at the administrative level. Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985) (quotation omitted).

Here, Cote argues that he was denied due process because the IJ did not inform him that he could present witnesses on his behalf and did not offer to continue the proceedings so that Cote could gather witnesses.²  Cote failed to raise these issues in his appeal to the BIA. If he had brought his due process claim before the IJ or the BIA, the alleged procedural defect could have been corrected. See Vargas, 831 F.2d at 908. Therefore, we lack jurisdiction to address this claim. See id.

DISMISSED.