UNPUBLISHED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Petition dismissed in part and denied in part by unpublished per 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Unpublished opinions are not binding precedent in this circuit.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