Moran v. Gonzales

MEMORANDUM ** To the extent we have jurisdiction to review questions of law under 8 U.S.C. § 1252 (a)(2)(D), we conclude that the BIA did not err in denying petitioner’s appeal as untimely. See 8 C.F.R. § 1003.38 (c) (“The date of filing ... shall be the date the Notice is received by the Board.”); see also Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993) (“The time limit for filing an appeal is mandatory and jurisdietion *686 alUnder section 1252(a)(2)(D), we do not have jurisdiction to review the BIA’s discretionary decision not to certify the untimely appeal. Nor do we have jurisdiction to review petitioner’s ineffective assistance claim because it has not been administratively exhausted. See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997). Petitioner does not raise the issue whether the underlying conviction constituted an aggravated felony in his opening brief. Nor does he argue in his supplemental brief that we may address this claim, even if the BIA properly denied his appeal as untimely. We thus do not reach this issue. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992). DISMISSED in part and DENIED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.