SAENZ ALVARADO v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-19No. No. 20-71139

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court denied the motion for a stay of removal, except that a temporary stay remained in effect until the mandate issued.

Vivian Jeaneth Saenz Alvarado, a Guatemalan citizen, sought court review of an immigration board decision that found her removable based on an embezzlement conviction and denied her request for voluntary departure. Saenz Alvarado did not dispute that her Nevada embezzlement conviction qualified as an aggravated felony making her ineligible for voluntary departure. She raised an ineffective assistance of counsel claim for the first time in her petition to the court, but the court lacked authority to review it because she had not presented it to the immigration board. The court also declined to address her humanitarian relief arguments because the immigration board had not ruled on those grounds.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an embezzlement conviction constitutes an aggravated felony rendering a non-citizen removable
Whether the court may review ineffective assistance of counsel claims not exhausted before the immigration board
Whether the court may review humanitarian relief arguments the immigration board did not address

Procedural posture

Saenz Alvarado petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's removal order and denial of voluntary departure.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Vivian Jeaneth Saenz Alvarado, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges (“IJ”) decision finding her removable and denying her application for voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

Saenz Alvarado does not challenge the agencys determination that her embezzlement conviction under Nev. Rev. Stat. § 205.300 constituted an aggravated felony that rendered her removable and statutorily ineligible for voluntary departure. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a partys opening brief are waived).

To the extent Saenz Alvarado raises an ineffective assistance of counsel claim in the first instance in her opening brief, we lack jurisdiction to consider it. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an aliens administrative proceedings before the BIA.”); see also Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995) (“A petitioner must make a motion for the BIA to reopen before we will hold that he has exhausted his [ineffective assistance of counsel] claims.”).

We do not address Saenz Alvarados contentions as to humanitarian relief because the BIA did not deny relief on that ground. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry No. 8) is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.