Opinion
No. 05-73379.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 18, 2007.
Michael G. Moore, Esq., Estero, FL, for Petitioner.
CAS-District Counsel, Office of the District Counsel Department of Homeland Security, San Diego, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel Department of Homeland Security, San Francisco, CA, Virginia Lum, Anthony W. Norwood, Esq., U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-989-246.
Before: KOZINSKI, LEAVY, and BYBEE, Circuit Judges.
ORDER
The memorandum disposition filed on March 16, 2007 is hereby withdrawn and replaced by a concurrently filed memorandum disposition.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Carlos Antonio Robles-Diaz, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision to deny his motion to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and review the denial of a motion to reopen for abuse of discretion. Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999). We grant the petition for review in part, dismiss it in part, and remand for further proceedings.
Robles-Diaz contends that the agency should have assessed his motion to reopen on the merits, because it was filed after the five-year bar to his adjustment of status contained in former § 242B(e)(1) of the Immigration and Nationality Act had expired. The BIA, in applying Matter of M-S-, 22 I. N. Dec. 349 (BIA 1998) (en banc), to Robles-Diaz's case, did not address any effect this statutory provision may have on the subsequently enacted 90-day deadline for motions to reopen in 8 C.F.R. § 1003.23(b)(1). We therefore remand this aspect of the petition for review for the agency to consider the issue in the first instance. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
To the extent Robles-Diaz contends he received ineffective assistance of counsel, we lack jurisdiction to consider the claim because he failed to raise it before the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (requiring exhaustion of ineffective assistance of counsel claims).