Rodriguez-Serrano

DISCUSSION

[1] In Granados-Oseguera, we held that where a petitioner was denied due process because of ineffective assistance of counsel, we remand a motion to reopen to the BIA for recon- sideration. Id. at 997. To assert a valid due process ineffective assistance of counsel claim, a petitioner must demonstrate prejudice; namely, he must show that he has “plausible grounds for relief.” Id. at 997-98 (citing Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006)). Petitioner failed to do so here. In his motion to reopen, Petitioner sought to excuse his failure to depart based on “exceptional circumstances.” Congress eliminated the “exceptional circumstance” justification when it passed the Illegal Immigrant Reform and Immigration Responsibility Act of 1996. Compare 8 U.S.C. § 1229c(d) (2006) with id. § 1252b(e)(2)(A) (repealed 1996).

[2] Petitioner argues for the first time on appeal for the cre- ation of an “exceptional circumstance” equitable tolling exception to the current statute. That argument was not raised below and therefore is not properly before us. See Ochave v. INS, 254 F.3d 859, 867 (9th Cir. 2001).

Petition DENIED in part; DISMISSED in part.