Chinchilla Castaneda v. Holder
Opinion
Opinion
MEMORANDUM
Petitioner Byron Vinicio Reyes Castaneda (“Mr. Castaneda”) petitions for review of three decisions of the Board of Immigration Appeals (“BIA”): on his initial appeal; on his motion to reopen; and on his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252 (a)(1) and (a)(2)(D). For the reasons that follow, we grant the petition concerning the Board’s denial of reopening on the basis of ineffective assistance of counsel. Because we grant the petition on reopening, we deny as moot his petition for review of the Board’s subsequent denial of reconsideration. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1122 (9th Cir.2000). Finally, we dismiss the petition from his initial appeal. Mr. Castaneda, still represented by his first attorney, Otto Pena, made no argument whatsoever to the Board in support of his appeal, failing even to submit a brief. As a result, he failed to exhaust his arguments concerning the IJ’s conduct, and we lack jurisdiction. See Sanchez-Cruz v. INS, 255 F.3d 775, 779-80 (9th Cir.2001) (dismissing petition asserting a “colorable claim” of a due process deprivation before the IJ because it had not been presented to the Board).