Javier Jose Urbina; Moravia Josafina Urbina v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER JOSE URBINA; MORAVIA
JOSAFINA URBINA,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-74791
Agency Nos. A075-770-744
A075-770-745
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted on August 30, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) 2006
denial of their motion to reopen their cancellation of removal application. Because
their underlying claim of ineffective assistance of counsel was not exhausted
FILED
SEP 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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before the BIA, we dismiss for lack of jurisdiction. See 8 U.S.C. § 1252(d)(1);
Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
Petitioners assert that the BIA abused its discretion by not considering their
claim that they were prejudiced by ineffective assistance of counsel in their direct
appeal before that body. Despite the notation on petitioners’ brief that it was filed
“in Pro Per,” they now argue that the record on representation is ambiguous and
that this ambiguity counsels us to remand to the BIA to determine the issue in the
first instance, pursuant to Ray v. Gonzales, 439 F.3d 582, 584, 591 (9th Cir. 2006).
Here, unlike the detailed documentation of counsel’s ineffectiveness
submitted on the motion to reopen in Ray, petitioners only stated in their motion
that a notary, who had earlier provided them with attorneys to represent them
before the Immigration Judge (“IJ”), had told them she would handle the direct
appeal that they ultimately lost. An assertion of having sought assistance from a
notary falls short of alerting the BIA that petitioners were raising an ineffective
assistance of counsel argument. Petitioners’ motion to reopen explicitly stated that
they were “NOT claiming that the IJ’s finding of lack of presence was the result of
ineffective assistance of counsel.” It then contested the legal analysis the IJ
employed to make that finding. Petitioners did not exhaust their claim that counsel
provided ineffective assistance on direct appeal.

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Petitioners likewise did not exhaust their request for reinstatement of
voluntary departure in their motion to reopen. We therefore do not have
jurisdiction to review the BIA’s silence on this issue. See Garcia v. Ashcroft, 368
F.3d 1157, 1159 (9th Cir. 2004) (order).
PETITION DISMISSED.

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