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Click here for the full text of this decision FACTS:Ruperto Gutierrez-Morales, a native and citizen of Mexico, has lived in the United States since his admission as a lawful permanent resident in 1997. Later that year, Gutierrez was convicted of aiding and abetting the entry of illegal aliens into the United States. Although Gutierrez’s offense made him removable under the Immigration and Nationality Act (INA), removal proceedings were not initiated against him until 2001, when Gutierrez briefly traveled to Mexico from the United States. On his return, Gutierrez was arrested and placed in removal proceedings. Before the immigration judge, Gutierrez did not challenge his removability. Instead, he sought to apply for a discretionary waiver of removal under �240A of the INA, which authorizes the Attorney General to cancel a permanent resident alien’s removal when, inter alia, the alien’s deportation would cause family hardship. The IJ ordered Gutierrez to file his application for �240A relief by June 24, 2002. Gutierrez failed to do so and, as a result, the IJ held that Gutierrez had abandoned his application and ordered him removed from the United States. The next day, Gutierrez’s lawyer filed a motion with the IJ to reopen Gutierrez’s removal proceedings. In support of this motion, Gutierrez argued that his lawyer’s health problems prevented counsel from filing the �240A relief application on time. Unconvinced, the IJ denied the motion. The IJ reasoned in part that, to the extent that Gutierrez was alleging ineffective assistance of counsel, he had not satisfied the Bureau of Immigration Appeals’ procedural requirements for bringing an ineffective assistance of counsel claim. In July 2003, the BIA affirmed the IJ’s denial of Gutierrez’s motion to reopen and dismissed Gutierrez’s appeal. In August 2003, Gutierrez made his first trip to the 5th U.S. Circuit Court of Appeals, petitioning the court to review the BIA’s July 2003 decision affirming the IJ’s denial of his motion to reopen. The court affirmed the BIA’s decision in an unpublished opinion. The court determined that the IJ properly denied Gutierrez’s motion to reopen “because [Gutierrez] was informed of his right to apply for cancellation of removal, and he was provided an opportunity to do so. Thus, the [IJ] did not violate [Gutierrez's] due process rights.” Gutierrez filed a concurrent habeas petition in the Western District of Texas challenging his removal order. The district court denied Gutierrez’s habeas petition, ruling that 1. because �240A relief is entirely discretionary, no interest in that relief is protected by the Due Process Clause; and, alternatively, 2. because Gutierrez had yet to comply with the BIA’s Lozada (Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)) requirements, he could not present his ineffective assistance of counsel claim. Gutierrez did not appeal the district court’s denial of his first habeas petition to this court. After firing his lawyer and employing new counsel, Gutierrez returned to the BIA on May 11, 2004, with a new motion to reopen. Gutierrez’s new motion urged the BIA to exercise its authority to reopen his removal proceedings sua sponte. Gutierrez contended that his initial lawyer’s assistance had been constitutionally ineffective because he missed the deadline for filing Gutierrez’s application for waiver of removal. Notably, the record reflects that by the time Gutierrez filed this new motion to reopen, he had complied with Lozada’s procedural requirements. On Sept. 1, 2004, the BIA denied Gutierrez’s motion to reopen. Specifically, the BIA held that Gutierrez’s case did not present the type of exceptional circumstances that warrant the sua sponte reopening of removal proceedings. To challenge this BIA decision, Gutierrez filed both a habeas action in the Western District of Texas and a petition for review in the 5th Circuit. The 5th Circuit dismissed Gutierrez’s petition for review because he filed it on Oct. 4, 2004, more than 30 days after the BIA’s order, thus making his petition untimely and depriving the court of jurisdiction. Gutierrez filed his habeas petition on Sept. 23, 2004. In it, he challenged the BIA’s decision on grounds of ineffective assistance of counsel. The district court dismissed the petition for lack of jurisdiction because, at that time, the court had not yet ruled on Gutierrez’s above-mentioned petition for review challenging the same BIA decision. Thus, the district court concluded that Gutierrez had not exhausted his administrative remedies, depriving that court of jurisdiction. This is the appeal to that decision of the district court � its dismissal of his September 2004 habeas petition on jurisdictional grounds. HOLDING:The petition for review is dismissed and outstanding motions are denied. When Gutierrez filed his first petition for review, the factual basis for his ineffective assistance of counsel claim existed. Gutierrez, however, could not have reasonably presented that claim because he was still represented by the very same counsel whom he now claims was ineffective. It would be unreasonable to require an alien to comply with Lozada, the necessary prerequisite to an ineffective assistance of counsel claim before the BIA, while still under that counsel’s representation. Gutierrez could not have presented his claim of ineffective assistance of counsel in his second petition for review because it was not timely filed. This court did not have jurisdiction to reach the merits of his claim. Accordingly, the plain terms of 8 U.S.C. �1252(d)(2) permit the court to consider the instant petition and the claim of ineffective assistance of counsel it advances. Gutierrez seeks a waiver of removal from the Attorney General on the basis of family hardship � ultimate relief that is purely discretionary. Accordingly, Gutierrez has no right to effective assistance of counsel in pursuing that waiver. An alien has no due process right to a hearing to determine his eligibility for relief that is purely discretionary. By parity of reasoning, such an alien also has no right to effective assistance of counsel in seeking to obtain such a hearing. OPINION:Wiener, J.; Smith, Wiener and Stewart, J.J.

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