                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


MIGUEL ANGEL GARCIA-BONILLA,            
                      Petitioner,
                 v.                                No. 02-2118
JOHN ASHCROFT,
                          Respondent.
                                        
              On Petition for Review of an Order of
               the Board of Immigration Appeals.
                          (A77-609-974)

                      Submitted: January 15, 2004

                       Decided: March 11, 2004

        Before WILKINS, Chief Judge, and LUTTIG and
                 TRAXLER, Circuit Judges.



Petition dismissed by unpublished per curiam opinion.


                             COUNSEL

Donald L. Schlemmer, Washington, D.C., for Petitioner. Robert D.
McCallum, Jr., Assistant Attorney General, Anthony W. Norwood,
Senior Litigation Counsel, Virginia M. Lum, Attorney, Civil Divi-
sion, Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
2                   GARCIA-BONILLA v. ASHCROFT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Miguel Angel Garcia-Bonilla petitions for review of an order of the
Board of Immigration Appeals (Board) summarily dismissing his
appeal from an immigration judge’s denial of his applications for asy-
lum, withholding of removal, and protection under the Convention
Against Torture. We dismiss the petition based on Garcia-Bonilla’s
failure to exhaust his administrative remedies.

                                  I.

   Garcia-Bonilla illegally entered the United States without inspec-
tion by an immigration officer. On July 27, 1999, the Immigration and
Naturalization Service issued a notice to appear, charging him with
removability under § 212(a)(6)(A)(i) of the Immigration and Nation-
ality Act, see 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 1999), as an alien
present in the United States without being admitted or paroled. At a
hearing before an immigration judge, Garcia-Bonilla conceded that he
was removable as charged but requested asylum, withholding of
removal, and protection under the Convention Against Torture. On
June 18, 2001, the immigration judge denied Garcia-Bonilla’s appli-
cations and ordered his removal from the United States.

   Garcia-Bonilla subsequently filed a timely notice of appeal with
the Board. On the notice of appeal form, he listed his reasons for
appeal. Item number six on page two of the notice form asked
whether he would "file a separate written brief or statement in addi-
tion to the ‘Reason(s) for Appeal’ written above or accompanying this
form." J.A. 15. Garcia-Bonilla checked the box indicating that he
would file a separate brief or statement and added the words "within
30 days of receipt of the entire transcript." Id. A shaded box below
the question contained a warning, preceded by a large exclamation
point, that read as follows: "WARNING: Your appeal may be sum-
                     GARCIA-BONILLA v. ASHCROFT                        3
marily dismissed if you indicate in Item #6 that you will file a sepa-
rate written brief or statement and, within the time set for filing, you
fail to file the brief or statement and do not reasonably explain such
failure." Id. Directly beneath the warning was the signature and date
line for the appealing party. Counsel signed and dated the form on
July 18, 2001.

   On February 6, 2002, the Board apparently sent a briefing sched-
ule, a copy of the immigration judge’s decision, and the transcript of
Garcia-Bonilla’s immigration court hearing to counsel, and informed
Garcia-Bonilla that his brief must be received by the Board no later
than March 8, 2002. It is undisputed that Garcia-Bonilla failed to file
a separate written brief or statement.

   On August 29, 2002, the Board summarily dismissed Garcia-
Bonilla’s appeal. In its order, the Board cited the warning contained
in the notice of appeal and 8 C.F.R. § 3.1(d)(2)(i)(D) (2002), which
provides for summary dismissal if a brief or statement is not filed
after a party has indicated that it would do so. Additionally, the Board
stated that upon review of the record, it was "not persuaded that the
Immigration Judge’s ultimate resolution of this case was in error."
J.A. 8.

                                   II.

   In his petition for review, Garcia-Bonilla argues that the Board vio-
lated his due process rights by dismissing his appeal for failure to file
a brief without giving him an opportunity to file one. Specifically, he
claims that he never received the briefing schedule or the transcript
of his hearing before the immigration judge. In light of prudential
considerations affecting our review of agency actions, we hold that
Garcia-Bonilla was required to present this claim to the Board in a
motion to reopen, and therefore that we cannot grant his petition.

   8 U.S.C.A. § 1252(d)(1) (West 1999) directs that "[a] court may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right." It has been
held that this statutory exhaustion requirement does not apply to
motions to reopen. See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-
81 (9th Cir. 2003). Nevertheless, courts may require exhaustion of
4                     GARCIA-BONILLA v. ASHCROFT
administrative remedies in some circumstances even when exhaustion
is not statutorily required. See NLRB v. Indus. Union of Marine &
Shipbuilding Workers of Am., AFL-CIO, 391 U.S. 418, 426 & n.8
(1968); Noriega-Lopez, 335 F.3d at 881. Such a prudential require-
ment does not deprive a court of jurisdiction but rather is within the
discretion of the reviewing court. See Montes v. Thornburgh, 919
F.2d 531, 537 (9th Cir. 1990). Exhaustion may be prudentially
required if:

     (1) agency expertise makes agency consideration neces-
     sary to generate a proper record and reach a proper decision;
     (2) relaxation of the requirement would encourage the
     deliberate bypass of the administrative scheme; and (3)
     administrative review is likely to allow the agency to correct
     its own mistakes and to preclude the need for judicial
     review.

Id. (internal quotation marks omitted).

   Our consideration of these factors here leads us to dismiss Garcia-
Bonilla’s petition. When Garcia-Bonilla received the Board order
stating that he had been "granted the opportunity to submit a brief"
but had failed either to do so or to "reasonably explain his . . . failure
to do so," J.A. 8 (internal quotation marks omitted), he needed only
to move the Board to reopen his case so that he could demonstrate
that he had never received the briefing schedule or transcript. See gen-
erally 8 C.F.R. § 3.2(c) (2003). Doing so would have given the Board
the chance to consider his explanation, make any necessary factual
findings, and decide whether to excuse his failure to file a brief.
Because he bypassed the Board altogether with regard to this claim,
however, the factual premise of the claim—that he never received the
briefing schedule and transcript—is not supported by any administra-
tive findings.* See McGee v. United States, 402 U.S. 479, 488 (1971)

   *Garcia-Bonilla has included in the joint appendix an affidavit from
his attorney stating that neither he nor Garcia-Bonilla received any for-
mal communication from the Board prior to its decision. However, that
affidavit, not having been presented to the Board in a motion to reopen,
is not properly before us. See 8 U.S.C.A. § 1252(b)(4)(A) (West 1999)
(providing that "the court of appeals shall decide [a petition for review
of a final order of removal] only on the administrative record on which
the order of removal is based").
                     GARCIA-BONILLA v. ASHCROFT                       5
(holding that "[t]he exhaustion requirement is properly imposed
where . . . the claim to exemption depends on careful factual analysis
and where the registrant has completely sidestepped the administra-
tive process designed to marshal relevant facts and resolve factual
issues in the first instance"); McKart v. United States, 395 U.S. 185,
194 (1969) (explaining that "judicial review may be hindered by the
failure of the litigant to allow the agency to make a factual record, or
to exercise its discretion or apply its expertise"); Rhoa-Zamora v. INS,
971 F.2d 26, 34 (7th Cir. 1992) (holding that "an appellate court is
not the appropriate forum to engage in fact-finding in the first
instance"). Moreover, allowing litigants to proceed directly to this
court with factual claims such as Garcia-Bonilla’s would remove
much of the incentive that would otherwise exist for presenting such
claims to the Board in the first instance and would eliminate the sig-
nificant possibility that the claims could be resolved at the Board
level with no judicial involvement. For all of these reasons, we con-
clude that prudential considerations preclude us from reviewing
Garcia-Bonilla’s challenge to the procedural basis for the Board’s
summary dismissal, and we therefore dismiss his petition.

                                              PETITION DISMISSED
