Frank Moretti Morote v. Eric Holder, Jr. , 584 F. App'x 740 ( 2014 )

FILED
NOT FOR PUBLICATION SEP 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK CLIFORD MORETTI MOROTE, No. 11-73593
Petitioner, Agency No. A073-753-835
v.
MEMORANDUM AND ORDER*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2014
Seattle, Washington
Before: HAWKINS, GRABER, and GOULD, Circuit Judges.
Petitioner Frank Cliford Moretti Morote (“Moretti Morote”) seeks review of the
Board of Immigration Appeals’ (“BIA”) order denying his request for deferral of
removal under the Convention Against Torture (“CAT”). Moretti Morote also
contends the BIA failed to address his claim of ineffective assistance of counsel. We
deny his petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Substantial evidence supports the BIA’s determination that Moretti Morote did
not bear his burden of establishing eligibility for CAT protection. Although some
small factions of the Sendero Luminoso continue to exist in Peru (now largely as
narcotics traffickers in remote areas), the evidence does not compel the conclusion
that, after nearly twenty years, Moretti Morote would more likely than not be tortured
on account of his family’s past associations with that group. 8 C.F.R. § 1208.16(c).1
Moretti Morote also attempts to bring a claim for ineffective assistance of
counsel because his criminal attorney failed to advise him of the immigration
consequences of his guilty plea. However, his isolated, passing reference in a
supplement to his BIA brief was insufficient to put the agency on notice that this was
an issue in the case, and therefore he failed to exhaust his administrative remedies.
See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). As such, we dismiss this
claim for lack of jurisdiction. Sola v. Holder, 720 F.3d 1134, 1136 (9th Cir. 2013)
(per curiam).
PETITION DENIED IN PART, DISMISSED IN PART.
1
We grant the government’s Motion to Strike and deny Moretti Morote’s
Motion to Remand to the BIA to consider new country conditions reports and other
evidence not previously presented to the BIA; however, this denial is without
prejudice to Moretti Morote’s ability to ask the BIA to consider such evidence in a
motion to reopen. See 8 C.F.R. § 1003.2(c); Go v. Holder, 744 F.3d 604, 609 (9th Cir.
2014).
2