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Strychalski v. Immigration and Naturalization Service

*fn* submitted: March 23, 1993.

MICHAL ANTONI STRYCHALSKI, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. INS No. A24-633-734

Before: Wallace, Chief Judge, Farris and Brunetti, Circuit Judges.

MEMORANDUM

Michal Antoni Strychalski, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) decision dismissing his appeal for an immigration Judge's (IJ) decision denying his applications for asylum and withholding of deportation and finding him deportable as charged. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.

I

Standard of Review

We review the BIA's denial of asylum for abuse of discretion. Acewicz v. INS, No. 91-70257, slip op. 969, 974 (9th Cir. Feb. 4, 1993). We review the BIA's factual findings under the substantial evidence standard. Id. We review de novo the BIA's determinations of on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

II

Statelessness Claim

Strychalski contends that he is stateless and that his counsel was ineffective for failing to raise this issue before the IJ and BIA. This contention lacks merit.

"As a general rule, issues not raised before an administrative tribunal cannot be raised on appeal from that tribunal." Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985). A petitioner's failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust administrative remedies on that issue and "deprives this court of jurisdiction to hear the matter." Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987).

Due process claims are exempt from this procedural rule because the BIA does not have jurisdiction to adjudicate constitutional issues. Id. If, however, the due process claim involves only "procedural errors correctable by the administrative tribunal," then the petitioner must exhaust the claim at the administrative level. Bagues-Valles, 779 F.2d at 484 (internal quotation omitted). "'A petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violates due process.'" Vargas, 831 F.2d at 908 (quoting Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir. 1985). Thus, without a showing by the petitioner that his or her due process claim does not involve procedural errors, we have no jurisdiction to consider the merits of the claim. Vargas, 831 F.2d at 908.

Here, Strychalski contends that he was denied adequate representation and prejudiced during his hearing because his previous attorney failed to raise the issue of statelessness. Because Strychalski failed to raise this issue before the BIA, we have jurisdiction to consider the merits of Strychalski's claim. See, Vargas, 831 F.2d at 908.

III

Refugee ...


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