                                                                            FILED
                             NOT FOR PUBLICATION                            APR 30 2015

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



                             FOR THE NINTH CIRCUIT


OSCAR ALEXANDER CHACON, AKA                      No. 09-72815
Oscar Chacon Ardon,
                                                 Agency No. A094-213-022
               Petitioner,

  v.                                             MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted April 22, 2015**

Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

       Oscar Alexander Chacon, 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 (“IJ”) denial of his motion to reconsider and reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for abuse of discretion the denial of a motion to reconsider, Mohammed v.

Gonzales, 400 F.3d 785, 791(9th Cir. 2005), and we deny in part and dismiss in

part the petition for review.

      The agency did not abuse its discretion in denying Chacon’s motion to

reconsider, where he failed to show any error of law or fact in the IJ’s original

removal order, and has not established that his decision to waive appeal of that

order was not knowing and intelligent, where he was represented by counsel, is

bound by his counsel’s tactical decisions, and did not raise a claim of ineffective

assistance of counsel before the agency. See Magallanes-Damian v. INS, 783 F.2d

931, 934 (9th Cir. 1986), cf. Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir.

2005) (finding an invalid appeal waiver where a pro se petitioner did not

understand the meaning of an appeal). In addition, the agency did not abuse its

discretion in construing Chacon’s motion as a motion to reconsider. See 8 C.F.R.

§ 1003.23(b)(2); Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003) (a motion

to reopen is usually based upon new evidence or a change in factual circumstance,

whereas a motion to reconsider is a request that the agency reexamine its decision

in light of additional legal arguments, a change of law, or an argument or aspect of

the case which was overlooked).




                                           2                                    09-72815
      We lack jurisdiction to consider Chacon’s newly-raised claim of ineffective

assistance of counsel because it is unexhausted. See Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not

presented in an alien’s administrative proceedings).

      In light of this disposition, we do not reach Chacon’s remaining contentions

concerning his eligibility for relief from removal.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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