De Santiago-Mayorga v. Gonzales

MEMORANDUM **

Ernesto Alonso de Santiago-Mayorga, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal for lack of jurisdiction of his appeal from an immigration judge’s (“IJ”) decision pretermitting his application for cancellation of removal. We dismiss the petition for review.

We lack jurisdiction to review whether the BIA properly dismissed petitioner’s appeal as untimely because petitioner has not challenged the BIA’s finding in his opening brief and has, therefore, waived the issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

We are also without jurisdiction to review petitioner’s contentions that the IJ erred in finding petitioner’s conviction was a crime of moral turpitude, and that he was denied due process due to ineffective assistance of counsel, because petitioner failed to raise these arguments before the BIA. See 8 U.S.C. § 1252 (d)(1); see also Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (explaining that exhaustion is jurisdictional); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (holding that ineffective assistance of counsel claims must first be exhausted before the…