Fouad Pierre Michel v. ERIC H. HOLDER Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOUAD PIERRE MICHEL,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-73189
Agency No. A070-542-999
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2009
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
Petitioner Fouad Pierre Michel (Michel) challenges the Board of
Immigration Appeal’s (BIA) decision upholding the Immigration Judge’s (IJ) final
order of removal finding Michel inadmissible due to multiple misrepresentations in
his asylum application and during his removal proceedings.
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. “[F]ailure to raise an issue in an appeal to the BIA constitutes a failure to
exhaust remedies with respect to that question and deprives this court of
jurisdiction to hear the matter.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.
2004) (citation and alteration omitted). An issue is deemed raised before the BIA
only if addressed in an alien’s merits brief to the BIA. See Abebe v. Mukasey, 554
F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). Michel’s brief to the BIA
did not discuss the materiality requirement, and therefore this argument was not
exhausted. Contrary to counsel’s assertions, the BIA’s conclusory statement of
materiality in the BIA’s opinion does not establish that the BIA sufficiently
considered the issue. Cf. Socop-Gonzales v. I.N.S., 272 F.3d 1176, 1186 (9th Cir.
2001) (en banc) (“Whether or not the decision on the merits was technically before
the BIA, the BIA addressed it thoroughly enough to convince us that the relevant
policy concerns underlying the exhaustion requirement . . . have been satisfied
here.”) (citation and alteration omitted).
2. Michel failed to comply with the requirements set forth in Matter of Lozado,
19 I. & N. Dec. 637 (BIA 1988). His non-compliance cannot be excused, because
the face of the record does not plainly reveal any ineffective assistance of counsel.
See Castillo-Perez v. I.N.S., 212 F.3d 518, 525-26 (9th Cir. 2000). As a result, the

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BIA acted within its discretion in denying Michel’s ineffective assistance of
counsel claim. See Reyes v. Ashcroft, 358 F.3d 592, 598 (9th Cir. 2004), as
amended.
3. Substantial evidence supports the BIA’s finding of inadmissibility. Section
8 U.S.C. § 1182(a)(6)(C)(I) provides: “Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United States or other
benefit provided under this chapter is inadmissible.” Michel’s misrepresentations
on his asylum application and during immigration proceedings enabled him to seek
to procure, and actually to obtain, the benefit of employment authorization to
which he was not otherwise entitled.
4. We lack jurisdiction to review denials of discretionary relief. See Mejia v.
Gonzales, 499 F.3d 991, 999 (9th Cir. 2007). To the extent Michel challenges the
BIA’s discretionary denials of his requests for waiver and voluntary departure, and
his motion to remand, we lack jurisdiction. See id.

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5. Michel was not denied due process of the law, because he had an
opportunity to present his case and the IJ considered his evidence. See Colmenar
v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000). Any negative remarks the IJ made
regarding Michel’s marriage do not reflect the level of bias this court has
recognized as violating a petitioner’s right to due process. Cf. id. (addressing
denial of opportunity to present evidence).
PETITION DISMISSED IN PART, DENIED IN PART.

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