CHARLES McBARANGO 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.
The Honorable Robert J. Timlin, Senior United States District Judge**
for the Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES McBARANGO,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
No. 07-71068
Agency No. A077-966-532
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 20, 2012
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and TIMLIN, Senior District**
Judge.
Charles McBarango (“McBarango”), a native and citizen of Nigeria,
petitions for review of a decision from the Board of Immigration Appeals (“BIA”).
The BIA upheld the immigration judge’s (“IJ”) determination that McBarango had
FILED
MAR 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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been convicted of an aggravated felony that was also a particularly serious crime,
thus rendering him ineligible for asylum and withholding of removal. The BIA
also upheld the IJ’s ruling that McBarango did not prove that it was more likely
than not that he would be persecuted for his political beliefs upon his return to
Nigeria, thus denying deferral of removal under the Convention Against Torture.
McBarango argues, for the first time in his petition for review, that errors by
his second and third attorneys prejudiced his removal hearing and his appeal to the
BIA. Because McBarango has not previously raised this claim with the BIA, we
dismiss the claim for failure to satisfy the administrative exhaustion requirement.
See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).
McBarango also argues that the BIA erred in denying his request to continue
his appellate proceedings while he awaited disposition of his wife’s next-relative
petition. McBarango argues that the BIA categorically denied his request, thus
presenting a question of law that we have jurisdiction to review. See 8 U.S.C. §
1252(a)(2)(D). We disagree with this characterization of the BIA’s decision. The
BIA did not categorically deny McBarango’s request. To the contrary, it analyzed
the individual factual circumstances of McBarango’s case, ultimately exercising its
discretion to deny the request. Because McBarango was convicted of an

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aggravated felony, we do not have jurisdiction to review the BIA’s discretionary
decision on this issue. See id. § 1252(a)(2)(C).
PETITION DISMISSED.

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