UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1311
JOSEPH AUJOUR,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A75-367-705)
Submitted: September 15, 2004 Decided: October 14, 2004
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Samuel N. Omwenga, Washington, D.C., for Petitioner. Peter D.
Keisler, Assistant Attorney General, David V. Bernal, Assistant
Director, Barry J. Pettinato, Jennifer J. Keeney, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Aujour, a Haitian native, petitions for review of
the Board of Immigration Appeals’ (Board) order denying his motion
to reopen. For the reasons stated below, we deny his petition for
review.
We review the Board’s denial of a motion to reopen with
extreme deference and only for an abuse of discretion. 8 C.F.R.
§ 1003.2(a) (2004); INS v. Doherty, 502 U.S. 314, 323-24 (1992);
Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999). Such motions
are especially disfavored “in a deportation proceeding, where, as
a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.”
Doherty, 502 U.S. at 323.
Aujour asserts he met the requirements for reopening the
Board’s decision under Matter of Velarde-Pacheco, 23 I. & N. Dec.
253 (BIA 2002). In Matter of Velarde-Pacheco, the Board held that
a properly filed and unopposed motion to reopen for adjustment of
status based on a bona fide marriage entered into after the
commencement of proceedings may be granted, at the Board’s
discretion, even though a visa petition is pending and not yet
approved. Id. at 256. The Board may grant the motion only when
the following factors are present: (1) the motion is timely filed;
(2) the motion is not numerically barred; (3) the motion is not
barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on
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any other procedural grounds; (4) the motion presents clear and
convincing evidence indicating a strong likelihood that the
[alien's] marriage is bona fide; and (5) the Service either does
not oppose the motion or bases its opposition solely on Matter of
Arthur, 20 I. & N. 475 (BIA 1992). Id.
We conclude the Board did not abuse its discretion when
it found Aujour failed to present clear and convincing evidence
that there is a strong likelihood that his marriage is bona fide.
Because this provided a sufficient basis for the Board’s decision,
we need not address whether the fifth prong of the Velarde-Pacheco
test implicates due process rights.
Aujour next argues his motion to reopen should have been
granted under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),
because his counsel was ineffective. Under Matter of Lozada, a
motion to reopen may be filed out of time if it is based on
ineffective assistance of counsel. However, the alien must also
show he was prejudiced by his counsel’s actions. Id. at 638;
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). Because Aujour
was not able to present clear and convincing evidence that his
marriage is bona fide, we conclude he was not prejudiced by his
counsel’s failure to file a motion to reopen based on Matter of
Velarde-Pacheco.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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