Mendoza-Martinez v. Gonzales

MEMORANDUM ** Dora Alicia Mendoza-Martinez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to file a late notice of appeal. To the extent we have jurisdiction, it is under 8 U.S.C. § 1252 . We deny in part and dismiss in part the petition for review. The time limit for filing a notice of appeal with the BIA is mandatory and jurisdictional, see Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993), and Mendoza-Martinez concedes her notice of appeal was untimely- We lack jurisdiction to consider Mendoza-Martinez’s claim that the ineffective assistance of her prior counsel caused the late filing of her notice of appeal, because Mendoza-Martinez has not exhausted that claim. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (an alien must exhaust his administrative remedies with the agency prior to arguing ineffective assistance of counsel to this court). Mendoza-Martinez’s unopposed request for this court to take judicial notice of the BIA’s December 22, 2005 order is granted. Mendoza-Martinez’s request for oral argument is denied. PETITION FOR REVIEW DISMISSED in part and DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.