Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.narcisa Velasquez, Petitioner, v. Immigration and Naturalization Service, Respondent, 86 F.3d 1147 (1st Cir. 1996)

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US Court of Appeals for the First Circuit - 86 F.3d 1147 (1st Cir. 1996) April 26, 1996

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.



Before SELYA, BOUDIN and STAHL, Circuit Judges.


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 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 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.


We express no opinion on whether or not such a motion would be frivolous