Rolando Gaitan-Gamez v. Eric Holder, Jr.

Filing 920100805

Case: 09-60457

Document: 00511194368

Page: 1

Date Filed: 08/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-60457 Summary Calendar August 4, 2010 Lyle W. Cayce Clerk

ROLANDO ANTONIO GAITAN-GAMEZ, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A094 799 089

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges. PER CURIAM:* Rolando Antonio Gaitan-Gamez, a native and citizen of Nicaragua, petitions this court to review the decision of the Board of Immigration Appeals (BIA) summarily dismissing his appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E) for failure to file a brief challenging an Immigration Judge's (IJ) denial of his request for voluntary departure. Although Gaitan-Gamez withdrew his

applications for asylum, withholding of removal, and relief under the Convention Against Torture at a hearing before the IJ, he argues that his attorney was
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.
*

Case: 09-60457

Document: 00511194368 Page: 2 No. 09-60457

Date Filed: 08/04/2010

ineffective for allowing him to withdraw the applications and that his withdrawal was not knowing and voluntary. Gaitan-Gamez did not argue to the BIA that his attorney was ineffective and the withdrawal of his applications was involuntary. Therefore the issues are unexhausted, and this court lacks jurisdiction to consider them. See Omari v. Holder, 562 F.3d 314, 317-19 (5th Cir. 2009); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001); 8 U.S.C. § 1252(d)(1). Gaitan-Gamez has abandoned any argument concerning the BIA's dismissal of his appeal for failure to brief by failing to argue the issue in this court. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Accordingly, the petition for review is DENIED.

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