                                                                              FILED
                             NOT FOR PUBLICATION                                SEP 15 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JAVIER JOSE URBINA; MORAVIA                      No. 06-74791
JOSAFINA URBINA,
                                                 Agency Nos.        A075-770-744
              Petitioners,                                          A075-770-745

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted on August 30, 2010
                              Pasadena, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.

       Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) 2006

denial of their motion to reopen their cancellation of removal application. Because

their underlying claim of ineffective assistance of counsel was not exhausted




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule R. 36-3.
before the BIA, we dismiss for lack of jurisdiction. See 8 U.S.C. § 1252(d)(1);

Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

      Petitioners assert that the BIA abused its discretion by not considering their

claim that they were prejudiced by ineffective assistance of counsel in their direct

appeal before that body. Despite the notation on petitioners’ brief that it was filed

“in Pro Per,” they now argue that the record on representation is ambiguous and

that this ambiguity counsels us to remand to the BIA to determine the issue in the

first instance, pursuant to Ray v. Gonzales, 439 F.3d 582, 584, 591 (9th Cir. 2006).

       Here, unlike the detailed documentation of counsel’s ineffectiveness

submitted on the motion to reopen in Ray, petitioners only stated in their motion

that a notary, who had earlier provided them with attorneys to represent them

before the Immigration Judge (“IJ”), had told them she would handle the direct

appeal that they ultimately lost. An assertion of having sought assistance from a

notary falls short of alerting the BIA that petitioners were raising an ineffective

assistance of counsel argument. Petitioners’ motion to reopen explicitly stated that

they were “NOT claiming that the IJ’s finding of lack of presence was the result of

ineffective assistance of counsel.” It then contested the legal analysis the IJ

employed to make that finding. Petitioners did not exhaust their claim that counsel

provided ineffective assistance on direct appeal.


                                           2
      Petitioners likewise did not exhaust their request for reinstatement of

voluntary departure in their motion to reopen. We therefore do not have

jurisdiction to review the BIA’s silence on this issue. See Garcia v. Ashcroft, 368

F.3d 1157, 1159 (9th Cir. 2004) (order).

      PETITION DISMISSED.




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