                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 21 2004
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    LINDAWATI TJANDRA; WE LI
    TJEONG,

                Petitioners,
                                                         No. 03-9559
    v.                                        (Nos. A77-868-396 & A77-868-397)
                                                     (Petition for Review)
    JOHN ASHCROFT, Attorney General
    of the United States,

                Respondent.


                               ORDER AND JUDGMENT         *




Before SEYMOUR and ANDERSON , Circuit Judges, and             KANE , ** Senior
District Judge.


         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      Petitioner Lindawati Tjandra and her husband, petitioner We Li Tjeong,

seek review of a decision of the Board of Immigration Appeals (BIA) dismissing

their appeal from the denial of their application for asylum, withholding of

removal, and relief under the Convention Against Torture. The alleged

persecution was aimed at Ms. Tjandra; therefore, Mr. Tjeong’s claims are

dependent on her claims. Because we conclude that we lack jurisdiction to hear

this appeal, we dismiss the petition for review.

      Petitioners are citizens of Indonesia and ethnic Chinese.       They are

Christian. Indonesia is a predominantly Muslim country. Ms. Tjandra claims

that, on account of her race or religion, she was gang-raped by seven men during

the Indonesian riots of May 1998, that one of the men was dressed in military

clothing, and that she suffers severe depression as a result of this ordeal. On

October 28, 1998, Ms. Tjandra and her husband fled Indonesia and entered the

United States on visitors’ visas. On October 14, 1999, Ms. Tjandra and her

counsel signed an application for asylum and withholding of removal, but the

application was not filed until December 1999, more than one year after

petitioners entered the United States. The INS     1
                                                       thereafter served petitioners with



1
       “The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.”     Sviridov v. Ashcroft ,
358 F.3d 722, 724 n.1 (10th Cir. 2004).

                                           -2-
notices to appear, asserting that they were removable under 8 U.S.C.

§ 1227(a)(1)(B), for overstaying their visitors’ visas. At a master calendar

proceeding, petitioners conceded removability but sought asylum, withholding of

removal, and relief under the Convention Against Torture. After a merits hearing,

an immigration judge (IJ) issued an oral decision holding Ms. Tjandra’s

application for asylum time-barred under 8 U.S.C. § 1158(a)(2)(B). The IJ also

denied withholding of removal and relief under the Convention Against Torture,

but granted voluntary departure. Ms. Tjandra timely appealed to the BIA, which

dismissed her appeal on April 21, 2003. In doing so, the BIA held that the IJ

“correctly pretermitted her asylum application.” Admin. R. at 9. The BIA also

denied withholding of removal and relief under the Convention Against Torture.

This petition for review followed.

      Ms. Tjandra raises two issues on appeal. First, she generally asserts that

she received ineffective assistance of counsel from the attorney who represented

her before the IJ and BIA. In particular, she claims that she was prejudiced by

her former attorney’s deficient performance because her former attorney failed to




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timely file her asylum application.    2
                                           Second, Ms. Tjandra asserts that she was

incorrectly denied withholding of removal.

       Before we address Ms. Tjandra’s first issue, which she raises for the first

time in this court, we must examine our jurisdiction. As we have often stated,

“[t]he failure to raise an issue on appeal to the Board constitutes failure to

exhaust administrative remedies with respect to that question and deprives the

Court of Appeals of jurisdiction to hear the matter.”      Rivera-Zurita v. INS , 946

F.2d 118, 120 n.2 (10th Cir. 1991). Notwithstanding, “[c]ourts have carved out

an exception to the exhaustion requirement for constitutional challenges to the

immigration laws, because the BIA has no jurisdiction to review such claims.”

Akinwunmi , 194 F.3d at 1341. But because the BIA has created a mechanism for

hearing an ineffective assistance of counsel claim,      see Matter of Lozada , 19 I. &

N. Dec. 637 (BIA 1988), this court has held that an “alien’s failure to raise the

claim to the BIA,” via a motion to reopen the administrative proceedings,

“deprives this court of jurisdiction to review it.”     Akinwunmi , 194 F.3d at 1341;


2
       Contrary to petitioners’ suggestion that the Sixth Amendment entitles those
in deportation proceedings to the effective assistance of counsel, “there is no
Sixth Amendment right to counsel in a deportation proceeding.”     Akinwunmi v.
INS , 194 F.3d 1340, 1341 n.2 (10th Cir. 1999). Instead “a claim of ineffective
assistance of counsel in a deportation proceeding may be based only on the Fifth
Amendment guarantee of due process.”      Id. Because petitioners’ brief on appeal
contains Fifth Amendment ineffective-assistance-of-counsel arguments, albeit
without citing the Fifth Amendment, we assume, without deciding, that petitioners
also proceed under a Fifth Amendment due process theory.

                                              -4-
see also Osei v. INS , 305 F.3d 1205, 1208 (10th Cir. 2002) (noting that because

the Board has “a mechanism for hearing due-process based claims of ineffective

assistance of counsel, such claims must first be presented to the Board”).

Likewise, this court is without jurisdiction to hear any argument with respect to

the denial of petitioners’ request for withholding of removal or relief under the

Convention Against Torture because petitioners did not raise these issues before

the BIA. See Rivera-Zurita , 946 F.2d at 120 n.2.

      Accordingly, we DISMISS the petition for review because we lack

jurisdiction.



                                                    Entered for the Court



                                                    John L. Kane
                                                    Senior District Judge




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