Xiao Chen v. Eric Holder, Jr.

MEMORANDUM

Xiao Min Chen, a Chinese national and citizen, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), In re X-M-C-, 25 I. & N. Dec. 322 (B.I.A.2010), which was issued following a remand from this Court. See Chen v. Mukasey (“Chen I”), 527 F.3d 935 (9th Cir.2008). In this appeal, Petitioner argues, for the first time, that the Immigration Judge (“IJ”) failed to comply with 8 U.S.C. § 1158 (d)(4) at a hearing in Petitioner’s removal proceeding. She contends that although the IJ warned her of the consequence of knowingly filing a frivolous asylum application, the IJ failed to advise her of the privilege of being represented by counsel.

This issue was not raised before the IJ or the BIA, either before or after remand from this Court, and thus, we are deprived of jurisdiction to consider the argument. A failure to exhaust deprives this Court of jurisdiction to consider an issue. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir.2013).

In light of this Court’s recent decision in Kulakchyan v. Holder, No. 09-71185, 730 F.3d 993 (9th Cir.2013), the Court rejects Petitioner’s remaining argument that In re X-M-C- is an unreasonable interpretation of 8…