                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

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



                            FOR THE NINTH CIRCUIT


FOUAD PIERRE MICHEL,                             No. 06-73189

              Petitioner,                        Agency No. A070-542-999

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted December 9, 2009
                             San Francisco, California

Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.

       Petitioner Fouad Pierre Michel (Michel) challenges the Board of

Immigration Appeal’s (BIA) decision upholding the Immigration Judge’s (IJ) final

order of removal finding Michel inadmissible due to multiple misrepresentations in

his asylum application and during his removal proceedings.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    “[F]ailure to raise an issue in an appeal to the BIA constitutes a failure to

exhaust remedies with respect to that question and deprives this court of

jurisdiction to hear the matter.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.

2004) (citation and alteration omitted). An issue is deemed raised before the BIA

only if addressed in an alien’s merits brief to the BIA. See Abebe v. Mukasey, 554

F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). Michel’s brief to the BIA

did not discuss the materiality requirement, and therefore this argument was not

exhausted. Contrary to counsel’s assertions, the BIA’s conclusory statement of

materiality in the BIA’s opinion does not establish that the BIA sufficiently

considered the issue. Cf. Socop-Gonzales v. I.N.S., 272 F.3d 1176, 1186 (9th Cir.

2001) (en banc) (“Whether or not the decision on the merits was technically before

the BIA, the BIA addressed it thoroughly enough to convince us that the relevant

policy concerns underlying the exhaustion requirement . . . have been satisfied

here.”) (citation and alteration omitted).



2.    Michel failed to comply with the requirements set forth in Matter of Lozado,

19 I. & N. Dec. 637 (BIA 1988). His non-compliance cannot be excused, because

the face of the record does not plainly reveal any ineffective assistance of counsel.

See Castillo-Perez v. I.N.S., 212 F.3d 518, 525-26 (9th Cir. 2000). As a result, the


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BIA acted within its discretion in denying Michel’s ineffective assistance of

counsel claim. See Reyes v. Ashcroft, 358 F.3d 592, 598 (9th Cir. 2004), as

amended.



3.    Substantial evidence supports the BIA’s finding of inadmissibility. Section

8 U.S.C. § 1182(a)(6)(C)(I) provides: “Any alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to procure or has

procured) a visa, other documentation, or admission into the United States or other

benefit provided under this chapter is inadmissible.” Michel’s misrepresentations

on his asylum application and during immigration proceedings enabled him to seek

to procure, and actually to obtain, the benefit of employment authorization to

which he was not otherwise entitled.



4.    We lack jurisdiction to review denials of discretionary relief. See Mejia v.

Gonzales, 499 F.3d 991, 999 (9th Cir. 2007). To the extent Michel challenges the

BIA’s discretionary denials of his requests for waiver and voluntary departure, and

his motion to remand, we lack jurisdiction. See id.




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5.    Michel was not denied due process of the law, because he had an

opportunity to present his case and the IJ considered his evidence. See Colmenar

v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000). Any negative remarks the IJ made

regarding Michel’s marriage do not reflect the level of bias this court has

recognized as violating a petitioner’s right to due process. Cf. id. (addressing

denial of opportunity to present evidence).



      PETITION DISMISSED IN PART, DENIED IN PART.




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