                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 11 2004
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EDUARD ALEKSEYEVICH
    DEREVYANSKY;
    NADIYA PETROVNA
    DEREVYANSKA; VADYM
    DEREVYANSKY,

                Petitioners,

    v.                                                   No. 03-9572
                                                   (INS Nos. A78-583-103;
    JOHN ASHCROFT, Attorney General               A79-343-953; A78-545-406)
    of the United States,                            (Petition for Review)

                Respondent.


                               ORDER AND JUDGMENT         *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Eduard Alekseyevich Derevyanksy, Nadiya Petrovna Derevyanska,        1
                                                                                and

Vadym Derevyanksy petition for review of the orders of the Board of Immigration

Appeals (BIA) affirming the immigration judge’s (IJ) denial of petitioners’

applications for asylum, for withholding of removal under the Immigration and

Nationality Act (INA), and for withholding of removal under the United Nations

Convention Against Torture. Petitioners contend that the IJ erred in denying their

applications for asylum. They argue also that their cases should be re-opened and

remanded to the BIA based on ineffective assistance of counsel. We dismiss the

petition for lack of jurisdiction.

       The IJ denied petitioners’ applications for asylum as time-barred under

section 208(a)(2)(B) of the INA, 8 U.S.C. § 1158(a)(2)(B). We lack jurisdiction

to review the IJ’s determination that petitioners are ineligible for asylum because

of the untimeliness of their application.    Tsevegmid v. Ashcroft , 336 F.3d 1231,

1234-35 (10th Cir. 2003); 8 U.S.C. § 1158(a)(3).

       The petitioners argue also that they received ineffective assistance of

counsel in the proceedings before the IJ and the BIA. The petitioners did not

raise this issue before the BIA. This court has held that “because the BIA



1
       We have used “Nadiya” as Ms. Derevyanska’s first name because that is the
name that appears on her passport and on the majority of the other documents in
the record, but we note that in the record and in petitioners’ brief her name has
also been spelled “Nadya,” “Nadia” and “Nadyia.”

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provides a mechanism for hearing an ineffective assistance claim, an alien’s

failure to raise the claim to the BIA deprives this court of jurisdiction to review

it.” Akinwunmi v. INS , 194 F.3d 1340, 1341 (10th Cir. 1999). Because the

petitioners failed to raise their ineffective assistance of counsel claim to the BIA,

we do not have jurisdiction to review it.

       Finally, petitioners have waived any arguments with respect to the IJ’s

denial of their requests for withholding of removal under the INA and the

Convention Against Torture because they did not raise these issues in their

opening appellate brief.    See State Farm Fire & Cas. Co. v. Mhoon   , 31 F.3d 979,

984 n.7 (10th Cir. 1994).

       Accordingly, the petition is DISMISSED. On a final note, we admonish

petitioners’ counsel for failing to attach copies of the IJ’s and the BIA’s decisions

as required by 10th Cir. R. 28.2(A)(1). We likewise admonish respondent’s

counsel for not complying with 10th Cir. R. 28.2(B), which requires that the

respondent’s brief include these rulings if the petitioners fail to include them in

their brief.

                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge



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