U.S. Court of Appeals for the Ninth Circuit, 2011

Cardenas De Castaned v. Holder

U.S. Court of Appeals for the Ninth Circuit · Decided July 13, 2011 · Fernandez, Rymer, Tallman

442 F. App'x 320

Counsel

Margarita Cardenas De Castaneda, Cos-ta Mesa, CA, pro se., Isaiah Zachary Weedn, Esquire, Sheppard Mullin Richter & Hampton LLP, Costa Mesa, CA, Robert Scott Gerber, Esquire, Sheppard Mullin Richter & Hampton LLP, San Diego, CA, for Petitioners., Francisco Castaneda Cardenas, Ontario, CA, pro se., Huber Castaneda Cardenas, Ontario, CA, pro se., Reyna Castaneda Cardenas, Ontario, CA, pro se., Richard M. Evans, Esquire, Assistant Director, Jeffery R. Leist, Trial, OIL, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security San Francisco, CA, for Respondent.

Opinion

MEMORANDUM *

Margarita Cardenas de Castaneda and three of her children, all natives and citizens of Mexico, petition for review of a BIA decision denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Petitioners failed to exhaust their sole claim, ineffective assistance of counsel, by raising that issue before the BIA in a motion to reopen. As a prudential matter, when such claims relate to attorney conduct that occurred prior to and during the removal proceedings, as they do here, “the BIA [is] the appropriate body to first pass on the claims in order to generate a proper record for review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Though petitioners may not have realized they had such a claim until their new counsel was appointed, the period to file a motion to reopen may be equitably tolled during periods where petitioners are receiving ineffective assistance of counsel. Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir. 2003). We therefore deny the petition.

DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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