green
Positive treatment
Quoted verbatim 4×
50.5 score
“... ecause the bia provides a mechanism for hearing an ineffective assistance claim, an alien's failure to raise the claim to the bia deprives this court of jurisdiction to review it.”
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999
2012
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
Sswajje v. Ashcroft
... ecause the bia provides a mechanism for hearing an ineffective assistance claim, an alien's failure to raise the claim to the bia deprives this court of jurisdiction to review it.
discussed
Cited as authority (verbatim quote)
Grazhees v. INS
courts have carved out an exception to the exhaustion requirement for constitutional challenges to the immigration laws, because the bia has no jurisdiction to review such claims.
discussed
Cited as authority (quoted)
Raju v. Holder, Jr.
(2×)
also: Cited "see"
n alien must show that his counsel's ineffective assistance so prejudiced him that the proceeding was fundamentally unfair.
discussed
Cited as authority (quoted)
Panjaitan v. Gonzales
e have jurisdiction only over those claims that were presented to the bia and were properly appealed to this court....
discussed
Cited as authority (rule)
Valerio-Lopez v. Barr
“The BIA permits an alien to move to reopen the administrative proceedings when his counsel’s incompetence has prevented him from 4 reasonably presenting his case.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (internal quotation marks omitted). “[B]ecause the BIA provides a mechanism for hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA deprives this court of jurisdiction to review it.” Id.
discussed
Cited as authority (rule)
Cerros-Gutierrez v. Barr
See 8 U.S.C. § 1252 (d)(1); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (“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.” (internal quotation marks omitted)). 6
cited
Cited as authority (rule)
Sione v. Sessions
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam).
cited
Cited as authority (rule)
Ontiveros v. Lynch
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
cited
Cited as authority (rule)
Garcia v. Lynch
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
cited
Cited as authority (rule)
Suarez-Sanchez v. Lynch
See id; Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
discussed
Cited as authority (rule)
Chairez-Perez v. Holder
Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam) (citation and internal quotation marks omitted); see also Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir.2008) (“[Ojbjections to procedural errors or defects that the BIA could have *783 remedied must be exhausted even if the alien later attempts to frame them in terms of constitutional due process on judicial review”).
cited
Cited as authority (rule)
Dean v. Holder, Jr.
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam) (citations omitted) (internal quotation marks omitted).
discussed
Cited as authority (rule)
Vicente-Elias v. Mukasey
But § 1252(d)(1) requires exhaustion only of “remedies available to the alien as of right.” Thus, we have not required exhaustion of “constitutional challenges to the immigration laws, because the BIA has no jurisdiction to review such claims.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
discussed
Cited as authority (rule)
Lara-Mijares v. Mukasey
The exhaustion requirement extends to issues that were not presented in a direct appeal to the BIA but could have been raised in a motion to reopen or to reconsider, id., and to constitutional due-process objections that involve administratively correctable procedural errors, Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
discussed
Cited as authority (rule)
Afanwi v. Mukasey
See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.2002); Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992); Lo zada v. INS, 857 F.2d 10, 13-14 (1st Cir.1988); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.1986). 35 .
discussed
Cited as authority (rule)
Lamijan v. Gonzales
Lamijan’s “failure to raise [this CAT] issue on appeal to the B oard constitutes failure to exhaust administrative remedies with respect to that question and deprives the Court of Appeals of jurisdiction to hear the matter.” Akinwunm i v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (internal quotation marks omitted); Torres de la Cruz v. M aurer, 483 F.3d 1013 , 1017 (10th Cir. 2007) (“[W]e have jurisdiction only over those claims that were presented to the BIA and were properly appealed to this court . . . .).
discussed
Cited as authority (rule)
Lamijan v. Gonzales
Mr. Lamijan’s “failure to raise [this CAT] 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.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam) (internal quotation marks omitted); Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.2007) (“[W]e have jurisdiction only over those claims that were presented to the BIA and were properly appealed to this court....”).
discussed
Cited as authority (rule)
Panjaitan v. Gonzales
Panjaitan has not directed us to any authority supporting a proposition that it is reversible error for an IJ not to make a specific finding as to past persecution when denying an application for restriction on removal. -10- Appeals of jurisdiction to hear the matter.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (internal quotation marks omitted); De La Cruz v. M aurer, ___ F.3d ___, 2007 W L 970166, at *2 (10th Cir. April 3, 2007) (“[W ]e have jurisdiction only over those claims that were presented to the B IA and were properly appealed to this court . . . .”).
discussed
Cited as authority (rule)
Ejaz Ahmed Shah v. U.S. Attorney General
Although Shah did not present this argument before the IJ or the BIA, this court has noted that “[s]ome circuits have indicated *866 in dicta that constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion, because the BIA does not have the power to adjudicate those claims.” Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir.2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.…
discussed
Cited as authority (rule)
Bangura v. Hansen
In the immigration context, several circuits have indicated that "constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion because the BIA does not have the power to adjudicate these claims." Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir.2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994)). 12 In this case, the district court erred in holding that Plaintiffs were requ…
discussed
Cited as authority (rule)
Bangura v. Hansen
In the immigration context, several circuits have indicated that “constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion because the BIA does not have the power to adjudicate these claims.” Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir.2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994)).
discussed
Cited as authority (rule)
Mathias Etchu-Njang v. John Ashcroft
See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001); Bernal- Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam); Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999); Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir. 1993); Dokic v. INS, 899 F.2d 530, 532 (6th Cir. 1990) (per curiam); Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985). -10- The only potentially relevant distinction we can see between a statutory issue exhaustion requirement arising from…
discussed
Cited as authority (rule)
Mathias Njang Etchu-Njang v. Alberto Gonzales, Attorney General of the United States of America, 1
See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir.2001); Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam); Stewart v. INS, 181 F.3d 587, 596 (4th Cir.1999); Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir.1994); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1993); Dokic v. INS, 899 F.2d 530, 532 (6th Cir.1990) (per curiam); Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985).
discussed
Cited as authority (rule)
Olivas-Rodela v. Comfort
It is not clear that we would have jurisdiction to review that order, as Rodela declined to exercise his right to contest the restatement order, see 8 C.F.R. § 241.8 (b); arguably, therefore, he failed to exhaust administrative remedies, compare Castro-Cortez v. INS, 239 F.3d 1037, 1045 (9th Cir.2001) (stating that the right to contest reinstatement order is, at most, a discretionary form of review that need not be exhausted; relying on analogy to motions to reopen Board of Immigration Board of Appeal proceedings) with Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam) (requir…
discussed
Cited as authority (rule)
Soberanes v. Comfort
(2×)
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (following Rivera-Zurita v. INS, 946 F.2d 118 , 120 n. 2 (10th Cir.1991)).
discussed
Cited as authority (rule)
Soberanes v. Comfort
(2×)
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (following Rivera-Zurita v. INS, 946 F.2d 118 , 120 n. 2 (10th Cir.1991)).
discussed
Cited as authority (rule)
Derevyansky v. Ashcroft
This court has held that “because the BIA provides a mechanism for hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA deprives this court of jurisdiction to review it.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999).
discussed
Cited as authority (rule)
Lipilina v. Immigration & Naturalization Service
This court has held that “because the BIA provides a mechanism for hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA deprives this court of jurisdiction to review it.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999).
discussed
Cited as authority (rule)
Gerald Sswajje v. John Ashcroft, Attorney General
Cf. Harchenko, 22 Fed.Appx. at 543 (holding that court lacks jurisdiction over issues not raised before the BIA; petitioner had failed to exhaust administrative remedies as to those issues because brief filed with the BIA on those issued had been untimely); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (“... [Bjecause the BIA provides a mechanism for hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA deprives this court of jurisdiction to review it.”). [7,81 The proper avenue for raising ineffective assistance of counsel is by filing a motio…
discussed
Cited as authority (rule)
Harrypersad Sundar v. Immigration and Naturalization Service, United States Atty. General
(2×)
See, e.g., Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994).
cited
Cited as authority (rule)
Camara v. Comfort
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999). 15 .
discussed
Cited as authority (rule)
Montejo v. Immigration & Naturalization Service
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999). 1 The one issue he preserved is whether the BIA erred in affirming the IJ’s decision that petitioner failed to establish past persecution or a reasonable fear of future persecution.
discussed
Cited as authority (rule)
Goonsuwan v. Ashcroft
Goonsuwan must first present his claim of ineffective assistance of counsel to the BIA, either on direct appeal or through a motion to reopen, otherwise § 106(c) precludes judicial review of the issue. 13 See Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.1999); Stewart v. INS, 181 F.3d 587, 596 (4th Cir.1999); Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir.1994); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1993); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1991); Dokic v. INS, 899 F.2d 530, 532 (6th Cir.1990); Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985). 14 Co…
cited
Cited "see"
Sosa-Talavera v. Garland
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).
cited
Cited "see"
Munoz-Morales v. Garland
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).
discussed
Cited "see"
Cervantes-Soberano v. Garland
See Mahamat, 430 F.3d at 1283 . “[A] claim of ineffective assistance of counsel in a deportation proceeding” arises under “the Fifth Amendment guarantee of due process,” Akinwunmi v. INS, 194 F.3d 1340 , 1341 n.2 (10th Cir. 1999), and requires the alien to show that his attorney performed deficiently and prejudiced his case, see Ochieng v. Mukasey, 520 F.3d 7 Appellate Case: 21-9540 Document: 010110749689 Date Filed: 10/06/2022 Page: 8 1110, 1115 (10th Cir. 2008).2 To establish prejudice, the alien must show there is a reasonable likelihood that, but for his attorney’s errors, he wou…
discussed
Cited "see"
Simpara v. Garland
A. Legal Background Exhaustion and Jurisdiction Under 8 U.S.C. §1252 (d)(1) we have jurisdiction over claims challenging a final order of removal ‘if the alien has exhausted all administrative remedies available as of right.’” See Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007); see Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (holding this court lacks jurisdiction to consider a claim the petitioner did not first present to the BIA).
discussed
Cited "see"
Duarte-Lopez v. Garland
See Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir. 1999) (“[T]he BIA does have the authority to reopen cases to fix 5 Appellate Case: 21-9565 Document: 010110690015 Date Filed: 05/27/2022 Page: 6 1013, 1018 (10th Cir. 2007) (“[W]here a specific issue was not addressed in administrative proceedings in the manner it is now addressed before us, general statements in the notice of appeal to the BIA are insufficient to constitute exhaustion of administrative remedies.”); see also Garcia-Carbajal, 625 F.3d at 1237 (noting that, to exhaust administrative remedies, “[i]t is not enough . .…
cited
Cited "see"
Sosa-Valenzuela v. Garland
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).
discussed
Cited "see"
Nunez-Robles v. Sessions
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam); 8 U.S.C. § 1252 (d)(1) (granting jurisdiction to review a final order of removal if “the alien has exhausted all administrative remedies available to the alien as of right”).
cited
Cited "see"
Pang v. Sessions
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (holding court lacks jurisdiction to consider an issue on appeal not raised in alien’s motion to reopen).
cited
Cited "see"
Mena-Flores v. Holder
See Akinwunmi v. INS, 194 F.3d 1340 , 1341 & n. 2 (10th Cir.1999) (per curiam).
discussed
Cited "see"
Mendiola v. Holder
See Akinwunmi v. INS, 194 F.3d 1340 , 1341 n. 2 (10th Cir.1999) (per curiam) (“[A]n alien must show that his counsel’s ineffective assistance so prejudiced him that the proceeding was fundamentally unfair.”).
discussed
Cited "see"
Martinez Molina v. Holder
See Akimwunmi v. INS, 194 F.3d 1340 , 1341 (10th Cir.1999) (per curiam) (stating that appellate jurisdiction was absent when an alien failed to file a motion to reopen based on the legal theory later raised in our Court).
cited
Cited "see"
Ddungu v. Holder
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (per curiam).
cited
Cited "see"
Bakanovas v. Holder, Jr.
See Akinwunmi v. INS, 194 F.3d 1340 , 1341 n. 2 (10th Cir.1999) (per curiam).
discussed
Cited "see"
Manullang v. Mukasey
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (“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.” (quotation omitted)).
discussed
Cited "see"
Lopez v. Mukasey
(2×)
also: Cited "see, e.g."
See id. (citing Michelson, 897 F.2d at 468 ).
discussed
Cited "see"
Jonni v. Gonzales
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (applying exhaustion rule to due process claims regarding “administratively correctable procedural errors”).
cited
Cited "see"
Jonni v. Keisler
See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (applying exhaustion rule to due process claims regarding “administratively correctable procedural errors”).
Retrieving the full opinion text from the archive…
Edward Akinsola AKINWUNMI; Mobolaji O. Akinwunmi; Christopher I. Akinwunmi, Petitioners,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent
99-9530.
Court of Appeals for the Tenth Circuit.
Nov 8, 1999.
Sandra Saltrese-Miler, Boulder, Colorado, for Petitioners., Michelle E. Gorcien, Office of Immigration Litigation, Civil Division, Justice Department, Washington, D.C., for Respondent.
Tacha, Lijcero, Murphy.
Cited by 79 opinions | Published
Citer courts: Tenth Circuit (2)
[*1341] PER CURIAM.
Petitioners, the Atínwunmi family of Nigeria, seek review of a decision of the Board of Immigration Appeals (BIA) that dismissed their untimely appeal from a decision of the immigration judge that found them deportable and denied their application for asylum and withholding of deportation. Petitioners argue that their failure to timely file their appeal to the 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 seek a 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’ failure 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 have carved out an exception to the exhaustion requirement for constitutional challenges 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 the authority to reopen cases to fix administratively correctable 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 administrative 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, 1997) (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 BIA provides a mechanism for hearing an ineffective assistance claim, 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.1994) (holding that failure to raise ineffective assistance claim before BIA does not deprive appellate court of jurisdiction to review claim).
Petitioners state their intention to file a motion to reopen with the BIA in their stay motion, but there is no indication that they have actually filed one. See Motion for Stay of Deportation at 6 n. 2. We therefore 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.
1
. Because we conclude that we lack jurisdiction based on petitioners’ failure to exhaust their administrative remedies, we need not decide whether we also lack jurisdiction on other grounds.
2
. Contrary to petitioners' assertion in their docketing 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 deportation proceedings are civil in nature, a claim of ineffective assistance of counsel in a deportation proceeding may be based only on the Fifth Amendment guarantee of due process. See id. at 467-68. As a result, an alien must show that his counsel’s ineffective assistance so prejudiced him that the proceeding was fundamentally unfair. See id. at 468.