RUBY ESTELLA GARIBALDI, AKA Ruby Estella Ortega Garibaldi v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBY ESTELLA GARIBALDI, AKA Ruby
Estella Ortega Garibaldi,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70507
Agency No. A095-771-559
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2021
San Francisco, California
Before: GOULD and COLLINS, Circuit Judges, and EZRA,** District Judge.
Ruby Garibaldi (“Garibaldi” or “Petitioner”), a native of Mexico who was
brought to the United States as an infant, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing her appeal from an Immigration
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
JAN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge’s (“IJ”) decision ordering her removal to Mexico. Garibaldi’s petition is
based upon her contention that she received ineffective assistance of counsel in the
aforementioned proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252, and
we review de novo legal determinations and constitutional questions. Guan
v. Barr, 925 F.3d 1022, 1031 (9th Cir. 2019) (citing Diaz–Jimenez v. Sessions,
902 F.3d 955, 958 (9th Cir. 2018)). We dismiss Garibaldi’s petition for review for
lack of jurisdiction.1
Garibaldi’s petition to this Court only raises ineffective assistance of counsel
claims, which were raised for the first time before this Court.2 However,
petitioners generally cannot raise unexhausted claims not raised in the first instance
before the BIA, particularly claims that could have been corrected by the BIA. See
Vilchiz–Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (“[T]o the extent
petitioners contend they received ineffective assistance of counsel, we lack
jurisdiction to review unexhausted claims that could have been corrected by the
1 We further deny Petitioner’s Motion to Take Judicial Notice of (1) a letter from
the State Bar of Arizona and (2) a liability release because the Immigration and
Nationality Act “limits our review to the ‘administrative record upon which the
deportation order is based and the Attorney General’s findings of fact.’” See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996); 8 U.S.C. § 1252(b)(4)(A).
2 Petitioner does not argue in her petition for review that the BIA made any error in
its decision to affirm the IJ, and she therefore waives any challenge not premised
on her ineffective assistance of counsel claims. See Rizk v. Holder, 629 F.3d 1083,
1091 n.3 (9th Cir. 2011) (stating that issues not raised in the opening brief are
considered waived).

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BIA.”); Singh v. Gonzales, 499 F.3d 969, 973 (9th Cir. 2007); Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004); Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995).
Because Garibaldi raises unexhausted ineffective assistance of counsel claims for
the first time before this Court, we lack jurisdiction to review them.3
PETITION FOR REVIEW DISMISSED.
3 While we are unable to review Petitioner’s claims, she may be able to file a
motion to reopen before the BIA. At oral argument, counsel for the Government
indicated that Petitioner could file such a motion, although counsel took no
position on the merits of the motion or whether the Department of Homeland
Security would oppose it.

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