FILED NOT FOR PUBLICATION JUL 31 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO J. DAVILA CONTRERAS, No. 14-70161 Petitioner, Agency No. A077-126-675 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 9, 2018 Pasadena, California Before: BERZON and N.R. SMITH, Circuit Judges, and NYE,** District Judge. Francisco J. Davila Contreras, native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), which affirmed an immigration judge’s (“IJ”) denial of his application for adjustment of status and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David C. Nye, United States District Judge for the District of Idaho, sitting by designation. cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss the petition in part and grant the petition in part. 1. Davila Contreras failed to appeal the BIA’s December 2011 decision in which the BIA remanded the matter to the IJ for voluntary departure advisals only. This failure ordinarily deprives us of jurisdiction of the issues in that decision. See Singh v. Lynch, 835 F.3d 880, 883 (9th Cir. 2016). However, the BIA chose to address the merits of issues that were, or could have been, raised in the first appeal during its review in this second appeal. See 8 C.F.R. § 1003.2(a). This review constitutes a new final order of removal over which we have jurisdiction. See 8 C.F.R. § 1241.1. 2. Davila Contreras asserts that the BIA erred in declining to permit him to withdraw his former counsel’s concession of removability. However, Davila Contreras failed to make this request to the BIA. We therefore lack jurisdiction to address this issue. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) 2 (holding that a petitioner who fails to raise an issue before the BIA has failed to exhaust his administrative remedies, which deprives this court of jurisdiction).1 3. The Federal First Offender Act (“FFOA”) provides that a successfully expunged federal conviction “shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.” 18 U.S.C. § 3607(b). Prior to Nunez-Reyes v. Holder, FFOA relief was available to aliens whose state conviction was equivalent to or less than simple possession.2 See 646 F.3d 684, 695 (9th Cir. 2011) (en banc). Thus, the critical question is “what [Davila Contreras] did.” Lujan-Armendariz v. INS, 222 F.3d 728, 738 n.18 (9th Cir. 2000), overruled prospectively by Nunez-Reyes, 646 F.3d 684. 1 Even if the issue were exhausted, Davila Contreras asserts that former counsel’s admissions “were the result of unreasonable professional judgment.” See Santiago-Rodriguez v. Holder, 657 F.3d 820, 830 (9th Cir. 2011). We have equated “unreasonable professional judgment” with “ineffective assistance ...
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