
USCA1 Opinion

	




          April 26, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2241                                  NARCISA VELASQUEZ,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                           PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                               Selya, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Martin D. Harris, on brief for appellant.            ________________            Frank W. Hunger,  Assistant Attorney General, and Robert  Kendall,            _______________                                   ________________        Jr.,  Assistant Director,  Office  of  Immigration  Litigation,  Civil        ___        Division, Department of Justice.                                 ____________________                                 ____________________                    Per Curiam.  Narcisa Velasquez petitions this court for                    __________          review  of a decision of the Board of Immigration Appeals ("BIA")          denying her  motion to reopen  her deportation proceedings.   For          the following reasons, we deny the petition.               Velasquez  is  a  native  and  citizen  of Ecuador  who  was          admitted  to this country as  a lawful permanent  resident on May          12,  1988.  On  April 28, 1994,  the INS issued  an Order to Show          Cause  charging   Velasquez  with  deportability  based   on  two          convictions of crimes of moral turpitude, namely, shoplifting and          welfare  fraud.  See 8 U.S.C.   1251(a)(2)(A)(ii).  A deportation                           ___          hearing was held before  an immigration judge ("IJ") on  July 26,          1994,  at  which  Velasquez   was  represented  by  an  attorney.          Velasquez admitted  the convictions  but  sought a  discretionary          waiver  under   212(c) of the Immigration and Nationality Act, as          well as suspension of  deportation and voluntary departure.   The          IJ found that Velasquez was ineligible for any form of relief and          ordered her to be deported  to Ecuador.  On May 4,  1995, the BIA          dismissed Velasquez's appeal from this decision.               On June 16,  1995, Velasquez  filed a motion  to reopen  the          deportation proceedings to  apply for a    212(c) waiver, arguing          that she was now statutorily eligible  for such relief.  The  BIA          denied the motion to  reopen on November 9, 1995.   This petition          for review followed.               Represented by  new counsel, Velasquez argues  for the first          time that she was deprived  of due process because the IJ  failed          to advise her of her eligibility for relief under   212(h) of the                                         -2-          Act,  8 U.S.C.    1182(h).  See  8 C.F.R.    242.17(a).   We lack                                      ___          jurisdiction to reach this  argument.  The exhaustion requirement          that applies in immigration proceedings, see 8 U.S.C.   1105a(c),                                                   ___          bars consideration of arguments  not raised before the BIA.   See                                                                        ___          Thomas v.  INS, 976 F.2d 786,  789 (1st Cir. 1992).   Although an          ______     ___          exception exists for constitutional challenges to the Immigration          and  Nationality  Act and  INS  procedures,  a petitioner  cannot          obtain  review  of  procedural   errors  not  raised  before  the          administrative  tribunal merely  by framing  them as  due process          violations.  See Ravindran v. INS, 976 F.2d 754, 762-63 (1st Cir.                       ___ _________    ___          1992).    Since  the  BIA could  have  corrected  the  deficiency          Velasquez  complains of, see id.  at 762 (observing  that the BIA                                   ___ ___          has  the power to remand a case  to the IJ to remedy deficiencies          in procedure), she is barred from raising the issue here.  We add          that, in any event, our review  is limited to the BIA's denial of          the motion to  reopen.   Velasquez makes  no meaningful  argument          that this  denial was in  error.  Indeed,  she concedes  that the          motion to reopen was frivolous.                  Velasquez  also argues  for  the  first  time that  she  was          deprived  of  due  process  by the  incompetency  of  her  former          counsel.   In particular, she  complains that former  counsel was          ineffective in failing to  raise and pursue a   212(h)  waiver at          her deportation hearing, in  raising a non-meritorious ground for          relief before the BIA, and in raising an equally frivolous ground          for  relief in her motion to reopen.   We agree with those courts          that have required petitioners to present ineffective  assistance                                         -3-          of  counsel claims to the BIA in  the first instance.  See, e.g.,                                                                 ___  ____          Liu  v.  Waters, 55  F.3d 421,  424-26  (9th Cir.  1995); Arango-          ___      ______                                           _______          Aradondo  v. INS,  13 F.3d  610, 614  (2d Cir.  1994); Castaneda-          ________     ___                                       __________          Suarez v.  INS, 993 F.2d  142, 144-45 (7th  Cir. 1993); Dokic  v.          ______     ___                                          _____          INS, 899  F.2d 530, 532 (6th Cir. 1990).  Velasquez may raise her          ___          ineffective assistance  of counsel argument  before the BIA  in a          motion to  reopen.1   See 8  C.F.R.    3.2,  3.8 (procedures  for                                ___          motion to reopen or reconsider); see also Matter of Lozado, 19 I.                                           ________ ________________          & N.  Dec. 637  (BIA 1988),  aff'd, 857 F.2d  10 (1st  Cir. 1988)                                       _____          (establishing  guidelines for  raising ineffective  assistance of          counsel claims  before the BIA).   Accordingly, the  petition for          review is denied and dismissed.               Affirmed.  See Loc. R. 27.1.                          ___                                        ____________________               1We express no opinion on whether or not such a motion would          be frivolous.                                           -4-
