Andres Acosta Cabezas v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES ACOSTA CABEZAS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71257
Agency No. A208-927-368
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2022**
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,***
District Judge.
FILED
FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.

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Andres Acosta Cabezas (“Petitioner”), a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of
his untimely appeal of the Immigration Judge’s (“IJ”) denial of his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). “We review de novo claims of ‘due process violations in
removal proceedings,’” Grigoryan v. Barr, 959 F.3d 1233, 1239 (9th Cir. 2020)
(quoting Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010)), and we
deny the petition for review.
Petitioner argues that ineffective assistance of counsel has deprived him of
his due process right to appeal the IJ’s decision. We lack jurisdiction over
Petitioner’s ineffective assistance of counsel claim because he has not exhausted
his administrative remedies by presenting the claim to the BIA.
In general, we may review a final order of removal only if “the alien has
exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). This exhaustion requirement, “as set forth in 8 U.S.C. § 1252(d)(1),
is jurisdictional and therefore ‘generally bars us, for lack of subject-matter
jurisdiction, from reaching the merits of a legal claim not presented in
administrative proceedings below.’” Honcharov v. Barr, 924 F.3d 1293, 1296 n.2
(9th Cir. 2019) (per curiam) (quoting Barron v. Ashcroft, 358 F.3d 674, 678 (9th
2

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Cir. 2004)). This requirement applies to claims of ineffective assistance of
counsel. Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (“We
therefore require an alien who argues ineffective assistance of counsel to exhaust
his administrative remedies by first presenting the issue to the BIA.”). As we have
recently reiterated, “The proper way to raise and exhaust an ineffective assistance
of counsel claim in this situation is through a motion to reopen before the agency.”
Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021).
Petitioner seeks direct review of the BIA’s dismissal of his untimely appeal
and has not presented his ineffective assistance of counsel claim to the BIA.
Because Petitioner has not exhausted his administrative remedies, we lack
jurisdiction over the claim.
PETITION DENIED.
3

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