                       NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                               Argued July 10, 2007
                               Decided July 25, 2007

                                       Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. RICHARD D. CUDAHY, Circuit Judge

                     Hon. KENNETH F. RIPPLE, Circuit Judge

No. 06-3336

OUSSEYNOU LO,                                 Petition for Review of an Order of the
        Petitioner,                           Board of Immigration Appeals

      v.                                      No. A78-867-019

ALBERTO R. GONZALES,
         Respondent.

                                      ORDER

       Ousseynou Lo, a citizen and native of Senegal, married a United States citizen
after he was placed in removal proceedings for noncompliance with the conditions of
his student visa. Lo requested continuances three times to show that his marriage was
bona fide; an immigration judge (“IJ”) granted the first two requests but denied the
third. Lo appealed to the Board of Immigration Appeals (“BIA”) and attached to his
brief additional documents to show that his marriage was not fraudulent. The BIA
adopted and affirmed the IJ’s decision, and then added that it would not consider Lo’s
new evidence on appeal. Lo retained a new attorney, who now argues that Lo’s first
lawyer provided constitutionally ineffective assistance. We dismiss the petition for
lack of jurisdiction.
No. 06-3336                                                                      Page 2


       Shortly after arriving in the United States on a nonimmigrant visitor’s visa, Lo
obtained a nonimmigrant student visa so that he could attend the Zoni Language
Center in New York. When Lo stopped attending the school, however, the government
charged him with removability under 8 U.S.C. § 1227(a)(1)(C)(I). Lo appeared at four
removal hearings. The first was continued to allow him time to obtain counsel. At his
second hearing, held on February 15, 2005, Lo appeared with counsel, Michelle Neal,
who asked for a continuance because she claimed to have just received Lo’s recent
marriage certificate from Senegal. She believed that the marriage—to a United States
citizen named Brenda Brooks—may have provided a basis for Lo to apply to adjust his
status.1 The IJ granted the request and scheduled a third hearing for March 1, 2007.
At the third hearing Lo, through Neal, conceded removability but announced that he
intended to apply for adjustment of status based on his marriage. Lo indicated that
his wife had filed a visa petition on his behalf on February 22, 2005, but it had not yet
been approved. Neal requested another continuance to file an application for
adjustment of status and to produce evidence that the marriage was bona fide.

      The IJ granted the request and continued the proceedings until June 7, 2005.
The IJ advised Neal that the application, “with a copy for the Court[,] must be filed by
May 22nd, 2005.” Otherwise, the IJ stated, the request would be deemed abandoned.
The IJ also advised counsel to include evidence that the marriage was bona fide.

       At the June 7 hearing, the IJ observed that although he had asked for the
application for adjustment of status to be filed with the court by May 22, he had not
received anything. Neal explained that she had mailed Lo’s application for adjustment
of status to the United States Citizenship and Immigration Services on May 22, 2005.
The IJ reminded Neal that he had directed her to file the application with the court by
May 22. Neal apparently thought that the file would be transferred to the IJ, but the
IJ responded that he wanted a copy of the application for himself by May 22.

      Neal nevertheless offered the application and supporting documents into
evidence. Those documents include a copy of a letter from the Field Museum in


      1
          The marriage certificate is among the documents submitted along with Lo’s
brief on appeal to the BIA. How counsel could have had the marriage certificate at the
hearing on February 15, 2005, is unclear given that certificate itself reflects that the
parties were not married until February 20, 2005, and that the certificate was not
issued until two days later. The wedding photographs also complicate the chronology
because they date the wedding ceremony as February 5, 2005. Moreover, no one
explains how or why Lo, who was released from administrative detention on bond, was
permitted to travel to Senegal to get married in February in the midst of his removal
proceedings.
No. 06-3336                                                                      Page 3


Chicago, Illinois, addressed to “Ousseynou Lo & Brenda Brooks-Lo,” a copy of a letter
addressed solely to “Ousseynou Lo” regarding his credit card with Providian National
Bank, copies of email messages purportedly responding to a wedding announcement
for Lo and Brenda Brooks, copies of photographs appearing to be from their wedding
ceremony, and a copy of a federal income tax return filed by Brenda Brooks for 2004.
Neal also produced a copy of a credit card and bank statement, which were both in
Brooks’s name only. The government argued that none of the documents showed the
kind of commingling or cohabitation that typically accompany a bona fide marriage,
which prompted Neal to seek another continuance to submit more evidence that the
marriage was bona fide. The IJ denied her request.

      The IJ ordered Lo removed to Senegal, reasoning that the application for
adjustment of status had not been timely filed. Even considering the late-submitted
documents, the IJ continued, there was no clear and convincing evidence that the
marriage was bona fide. And given that lack of evidence, the IJ declined to continue
the case for adjudication of the pending visa petition.

       Through Neal, Lo appealed the denial of his request for a continuance to the
BIA. In his brief Lo argued that the IJ abused his discretion in refusing to grant a
continuance under the standards of In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57
(BIA 2002), given that Lo had to wait for evidence from Senegal and for copies of his
business records to arrive. He also argued that the IJ erred in preventing his wife from
testifying that the marriage was bona fide, though the record does not indicate that
Neal asked to present such testimony. Lo attached to his brief 75 pages of new
documents and affidavits from family, friends, and others, intended to show that the
marriage was not fraudulent.

       Finding no abuse of discretion, the BIA adopted and affirmed the IJ’s decision.
The BIA wrote that Lo’s “speculative future eligibility for adjustment of status fails to
establish good cause for a continuance of his removal proceedings, where he failed to
comply with the deadline set by the judge for submitting his application for adjustment
of status and supporting documents.” The BIA also refused to consider the new
documents attached to Lo’s brief because, it stated, it was limited to reviewing the
record created before the IJ. The BIA observed that Lo had not shown that the
information submitted with his brief was unavailable at the time of his hearing.

       Lo retained new counsel and filed his petition for review in this court on
August 30, 2006. Four months later his new counsel also filed with the BIA a motion
to reopen the case on the basis of ineffective assistance of previous counsel. Following
the procedures outlined in In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), counsel
attached to his motion to reopen an affidavit and formal complaint of ineffectiveness.
No. 06-3336                                                                        Page 4


But the motion to reopen itself is neither in the record on appeal nor attached to Lo’s
brief.

      According to the Attorney General’s brief, the BIA denied Lo’s motion to reopen
on January 26, 2007, while this appeal was pending. At oral argument, Lo’s new
counsel said that he has still not received a copy of the BIA’s decision.

      Lo’s sole argument on appeal is that he was denied the effective assistance of
counsel because his previous attorney failed to timely file his application for
adjustment of status and failed to present sufficient materials to demonstrate that his
marriage was bona fide. He concedes that he first raised this issue in his motion to
reopen. The Attorney General responds that Lo failed to exhaust his administrative
remedies by not allowing the BIA to consider this issue before petitioning this court for
review. Under 8 U.S.C. § 1252(d)(1), the Attorney Generally points out, aliens must
exhaust all remedies available “as of right.” But Lo counters that he was not required
to exhaust because the BIA’s decision to reopen is discretionary, and therefore not
available “as of right.”

       This court already considered and rejected Lo’s argument in Padilla v. Gonzales,
470 F.3d 1209 (7th Cir. 2006). In Padilla, the petitioner was ordered removed for
having been convicted of two crimes of moral turpitude. Id. at 1211. After an Illinois
state court vacated the two convictions, he sought relief from removal by filing a writ
of habeas corpus in federal court rather than a motion to reopen with the BIA. Id.
Padilla argued—as Lo does here—that reopening is not required because the grant of
a motion to reopen is not available from the BIA “as of right.” Id. at 1213. In rejecting
Padilla’s argument, this court held that he should have given the BIA an opportunity
to consider the effect of the vacated convictions. Id. at 1214. As a result, this court
dismissed the petition for lack of jurisdiction, holding that Padilla failed to exhaust his
administrative remedies by not first litigating a motion to reopen his case. Id. at 1215;
see also Goonsuwan v. Ashcroft, 252 F.3d 383, 385-86 (5th Cir. 2001) (holding that
petitioner under order of removal failed to exhaust administrative remedies by not
presenting claim of ineffective assistance of counsel to BIA).

       Like Padilla, Lo is required to demonstrate that he exhausted his claim for
ineffective assistance of counsel. This is true even though the right to effective counsel
in immigration proceedings arises under the Fifth Amendment’s Due Process Clause
rather than the Sixth Amendment, see Castanada-Suarez v. I.N.S., 993 F.2d 142, 144-
45 (7th Cir. 1993); Stroe v. I.N.S., 256 F.3d 498, 500 (7th Cir. 2001). Although due-
process claims are generally exempt from the exhaustion requirement (because the BIA
abstains from adjudicating constitutional issues), there are substantial prudential
considerations that nevertheless constrain this court from exercising jurisdiction over
such claims in the first instance. See Castanada-Suarez, 993 F.3d at 144. First,
No. 06-3336                                                                       Page 5


because it was within the BIA’s power to grant Lo relief for his due-process claim by
simply reopening his case, he is not exempted from exhaustion. Pjetri v. Gonzales, 468
F.3d 478, 481 (7th Cir. 2006); Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006).
Second, even though Lo—unlike Padilla—did file a motion to reopen his case, neither
the motion, nor the documents that support it, are part of the record in this appeal.
See Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (stating that “the proper
mechanism by which a movant may request to submit new evidence” is a motion to
reopen); Reyes-Hernandez v. I.N.S., 89 F.3d 490, 494 (7th Cir. 1996) (explaining that
without the appropriate motion, the BIA does not consider new evidence on appeal).
Consequently this court cannot evaluate if Lo’s motion properly exhausted his claim.

        Most importantly, although the parties agree that the BIA has denied Lo’s
motion to reopen (and counsel for the Attorney General informed us at oral argument
that the BIA denied Lo’s motion as untimely), that decision is not in the record either
(nor, for that matter, has Lo timely appealed that decision). Thus, as in Padilla, “there
is no agency decision on this issue for [the court] to review.” 470 F.3d at 1214. As a
result, this court does not have the “the benefit of the agency’s expertise” on Lo’s claim
of ineffectiveness—a principal purpose of exhaustion. See Castanada-Suarez, 993 F.3d
at 145. Without an agency decision on this issue to review, this court lacks jurisdiction
to address Lo’s sole argument that he was denied effective assistance of counsel. See
id.; Pjetri, 468 F.3d at 481 (explaining that court lacks jurisdiction to consider
arguments not exhausted before BIA); Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir.
2003) (“The exhaustion requirement is jurisdictional.”).2

      This petition is DISMISSED for lack of jurisdiction.




      2
         Although Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006), states
that failure to exhaust administrative remedies is technically not jurisdictional,
Korsunskiy does not overrule previous cases, including Awad and those cited in Pjetri,
holding that exhaustion of remedies is jurisdictional. In any event, the outcome is the
same: Lo is entitled to no relief.
