## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 8 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD AKINSOLA AKINWUNMI; MOBOLAJI O. AKINWUNMI; CHRISTOPHER I. AKINWUNMI,

Petitioners,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 99-9530

APPEAL FROM THE IMMIGRATION & NATURALIZATION SERVICE

BOARD OF IMMIGRATION APPEALS

(Petition for Review) (Nos. A74 665 527, A74 665 528, & A72 449 841) Submitted on the pleadings: Sandra Saltrese-Miller, Boulder, Colorado, for Peti tioners. Michelle E. Gorden, Office of Immigration Litigatio n, Civil Division, Justice Department, Washington, D.C., for Respondent.

Before TACHA , LUCERO , and MURPHY , Circuit Judges.

PER CURIAM

.1 Because we conclude that we lack jurisdiction basedon petitioners’ failure

to exhaust their administrative remedies, we need n ot decide whether we also lack jurisdiction on other grounds. -2- Petitioners, the Akinwunmi family of Nigeria, seek review of a decision of the Board of Immigration Appeals (BIA) that dism issed their untimely appeal from a decision of the immigration judge that foundthem deportable and denied their application for asylum and withholding of dep ortation. Petitioners argue that their failure to timely file their appeal to t he BIA was the result of their counsel’s ineffective assistance, and that the BIA should have permitted them to take the untimely appeal. Petitioners also seeka stay of deportation pending review. We dismiss the petition for review and the motion for stay of deportation for lack of jurisdiction due to petitioners’ failur e to exhaust their administrative remedies. 1 “The 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). Courts hav e carved out an exception to the exhaustion requirement for constitutional chall enges to the immigration laws, because the BIA has no jurisdiction to review such claims. See, e.g. , Rashtabadi v. INS , 23 F.3d 1562, 1567 (9th Cir. 1994). Nevertheless , “the BIA does have the2 Contrary to petitioners’ assertion in their docketi ng statement, there is no

Sixth Amendment right to counsel in a deportation proceeding. See Michelson v. INS , 897 F.2d 465, 467 (10th Cir. 1990). Because depo rtation proceedings are civil in nature, a claim of ineffective assistance of counsel in a deportation proceeding may be based only on the Fifth Amendmentguarantee of due process. See id. at 467-68. As a result, an alien must show that h is counsel’s ineffective assistance so prejudiced him that the proceeding wa s fundamentally unfair. See id. at 468. -3- authority to reopen cases to fix administratively c orrectable procedural errors, even when these errors are failures to follow due process.” Liu v. Waters , 55 F.3d 421, 426 (9th Cir. 1995). 2 The BIA permits an alien to move to reopen the admi nistrative proceedings when his counsel’s incompetence has prevented him “ ‘from reasonably presenting his case.’” In re N-K , Interim Dec. 3312, 1997 WL 123906 (BIA Mar. 13, 1 997) (quoting In re Lozada , 19 I. & N. Dec. 637, aff’d , 857 F.2d 10 (1st Cir. 1988)); see also 8 C.F.R. § 3.2. We have held that because the BIAprovides a mechanism for hearing an ineffective assistance cla im, an alien’s failure to raise the claim to the BIA deprives this court of jurisdiction to review it. See Dulane v. INS , 46 F.3d 988, 996 (10th Cir. 1995) (discussing Nguyen v. INS , 991 F.2d 621, 623 n.3 (10th Cir. 1993)); accord Mojsilovic v. INS , 156 F.3d 743, 748-49 (7th Cir. 1998); Rashtabadi , 23 F.3d at 1567; Dokic v. INS , 899 F.2d 530, 531-32 (6th Cir. 1990) (per curiam). But see Rabiu v. INS , 41 F.3d 879, 881-82 (2d Cir.-4-

1994) (holding that failure to raise ineffective as sistance claim before BIA does not deprive appellate court of jurisdiction to revi ew claim). Petitioners state their intention to file a motion to reopen with the BIA in their stay motion, but there is no indication th at they have actually filed one. See Motion for Stay of Deportation at 6 n.2. We there fore lack jurisdiction to review their claim of ineffective assistance of counsel. See Rivera-Zurita , 946 F.2d at 120 n.2. The motion for stay is denied and the petition for review is DISMISSED. The mandate shall issue forthwith.