Diaz v. Ashcroft
Diaz v. Ashcroft
Opinion of the Court
MEMORANDUM
Enrique J. Diaz, a native and citizen of Mexico, petitions for review of the BIA’s decision summarily affirming the IJ’s denial of his application for cancellation of removal and adjustment of status pursuant to INA § 240A, 8 U.S.C. § 1229(b). We affirm.
Diaz argues the BIA erred in affirming the IJ’s conclusion that his deceased child did not meet the definition contained in INA § 240A(b), 8 U.S.C. § 1229b(b), of a “child” who would experience “exception and extremely unusual hardship” due to his deportation. Diaz never raised this issue before the BIA. Accordingly, we have no jurisdiction to address it. Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (“Failure to raise an issue below constitutes failure to exhaust administrative remedies and deprives this court of jurisdiction to hear the matter.”).
The other issue raised by Diaz is that he was denied due process in his removal hearing because the BIA failed to inform him that one of his attorneys had been suspended from practice before the Board during the pendency of his removal proceedings.
We also find no due process violation arising from what is, essentially, an ineffective assistance claim arising from the Gadda suspension. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. This issue was also not raised before the BIA. However, an exception to the exhaustion doctrine has been carved out for constitutional challenges to INS procedures because the BIA has no jurisdiction to adjudicate constitutional issues. Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994).
. Gadda had also entered a solo appearance on January 27, 1998.
Reference
- Full Case Name
- Enrique J. DIAZ v. John ASHCROFT, Attorney General
- Status
- Published