                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-1532


ISMAEL ENRIQUE JIMENEZ CHAPARRO,

                  Petitioner,

             v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



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


Submitted:    January 11, 2010                Decided:   February 4, 2010


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


Ivan Yacub, YACUB LAW OFFICES, Falls Church, Virginia, for
Petitioner.    Tony West, Assistant Attorney General, John W.
Blakeley, Carol Federighi, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Ismael Enrique Jimenez Chaparro, a native and citizen

of Colombia, petitions for review of the Board of Immigration

Appeals’ (“Board”) order denying in part Chaparro’s motion for

reconsideration of the Board’s order affirming the immigration

judge’s (“IJ”) order of removal.

             Chaparro challenges the IJ’s conclusion that he was

removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), due

to    his   1993   Virginia       conviction     for    a   crime      involving        moral

turpitude     (sexual     battery),       and    8     U.S.C.     § 1182(a)(6)(C)(i)

(2006),       due       to        Chaparro’s         fraudulent             or      willful

misrepresentations           of     material      fact      in        his        1993    visa

application.        Neither of these issues was raised in Chaparro’s

direct appeal to the Board, and only the former issue was raised

in Chaparro’s motion for reconsideration.                        Because the former

claim was “based on a legal argument that could have been raised

earlier in the proceedings,” Matter of O-S-G-, 24 I. & N. Dec.

56,    58   (B.I.A.   2006),       the   Board   declined        to    consider         it   on

Chaparro’s motion for reconsideration.

             We may review a final order of removal only if “the

alien has exhausted all administrative remedies available to the

alien as of right.”           8 U.S.C. § 1252(d)(1) (2006).                      This court

has interpreted this provision to operate as a jurisdictional

bar in that “an alien’s failure to dispute an issue on appeal to

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the    [Board]      constitutes     a     failure         to    exhaust     administrative

remedies that bars judicial review.”                            Massis v. Mukasey, 549

F.3d 631, 638 (4th Cir. 2008), cert. denied, ___ U.S. ___, 2009

WL 1321022 (U.S. Nov. 30, 2009) (No. 08-1392).

                 Because     neither       of         these        claims       has        been

administratively           exhausted,     we       lack    jurisdiction        to   consider

them.       See Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009)

(holding that “improperly raising an issue for the first time in

a     motion      for   reconsideration            does    not     satisfy     [8     U.S.C.]

§ 1252(d)’s exhaustion requirement”); Massis, 549 F.3d at 638;

Asika       v.   Ashcroft,    362   F.3d       264,       267    n.3    (4th   Cir.    2004).

Accordingly, we dismiss the petition for review as to these two

claims for lack of jurisdiction.

                 Chaparro raises two additional issues in his petition

for review.          First, Chaparro asserts that he remains a lawful

permanent resident of the United States.                              However, Chaparro’s

residency         status     was    not    an        issue       in     dispute       in   the

administrative proceedings. *              Accordingly, we deny the petition

for review as to this issue.

                 Chaparro next posits the Board should have considered

the     issues      raised    for   the     first         time     in    his   motion       for

        *
       As the Attorney General correctly notes, neither the IJ
nor the Board ruled that Chaparro was not a lawful permanent
resident.



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reconsideration, because his attorney was ineffective for not

raising them in his direct appeal to the Board, and this court’s

opinion in Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008),

vacated, 130 S. Ct. 350 (2009), precluded Chaparro from filing a

motion      to     reopen   based       on     this     alleged      ineffective

representation.

            We agree with the Attorney General that, despite our

holding in Afanwi that there is no Fifth Amendment right to

effective representation of counsel in removal proceedings, 526

F.3d   at   798,   a   motion   to    reopen   based    on   counsel’s    alleged

ineffectiveness remained a viable avenue for relief at the time

Chaparro filed his motion for reconsideration.                      The Attorney

General’s opinion in Matter of Compean, 24 I. & N. Dec. 710,

731-39 (A.G. Jan. 7, 2009), setting forth the mandatory legal

standards    and    evidentiary      requirements     for    such   discretionary

reopening, and revised opinion in Matter of Compean, 25 I. & N.

Dec. 1 (A.G. June 3, 2009), support this conclusion.

            For the foregoing reasons, we dismiss the petition for

review in part and deny it in part.                    We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                 PETITION DISMISSED IN PART
                                                         AND DENIED IN PART


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