Rodriguez-Suruy

MEMORANDUM *

Petitioner Paola Rodriguez-Suruy petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an immigration judge’s (“IJ”) denial of her motion to reopen deportation proceedings held in absentia. She alleges that her attorney’s ineffective assistance caused her absence from the deportation hearing. She also contends that Article 3 of the Convention Against Torture trumps the exceptional circumstances standard for motions to reopen.

We first address whether petitioner exhausted her claim, because we are without jurisdiction to address a claim not raised at the administrative level. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir. 2001) (en banc). Petitioner’s motion to reopen explained that her attorney had not provided her with notice of the hearing. Her appeal to the BIA also attributed her absence to her attorney’s error. Although petitioner did not expressly invoke the exceptional circumstances standard, or claim to have received ineffective assistance of counsel, she presented the factual background in her filings to the agency, and the IJ ruled that her attorney’s failure to provide notice did not constitute an…

dissenting.

Paola Rodriguez-Suruy’s petition for review should be dismissed because she failed to exhaust her claims before the BIA. Because we lack jurisdiction, I respectfully dissent.

The court correctly notes that, “[b]efore a petitioner can raise an argument on appeal, [she] must first raise the issue before the BIA or IJ.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003). If an argument has not been raised at the administrative level, then we lack jurisdiction to even consider the matter. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc).

Rodriguez-Suruy did not argue to the IJ or BIA that her failure to appear was due to an exceptional circumstance, or specifically the ineffective assistance of her counsel. In fact, the disposition concedes that she “did not expressly invoke the exceptional circumstances standard, or claim to have received ineffective assistance of counsel.” The only indication in the record of such a claim is a single sentence in the facts section of Rodriguez-Suruy’s appeal to the BIA, which explains that her absence from her deportation hearing was because her attorney failed to inform her of the proceedings. Yet the court…