IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60438
Summary Calendar
QIRENG HUANG,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
(A72 780 883)
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March 12, 2003
Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Qireng Huang, a Chinese citizen, appeals from the denial of
his second motion to reopen his deportation proceedings. Motions
to reopen deportation proceedings are not favored and are reviewed
for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323
(1992); Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
An alien may proceed on a claim of ineffective assistance of
counsel if the representation was so deficient as to render the
deportation proceedings fundamentally unfair. See Matter of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-60438
-2-
Lozada, 19 I. & N. Dec. at 637, 638 (BIA 1998); Goonsuwan
v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001). Thus, a
showing of prejudice is a prerequisite to a cognizable claim of
ineffective assistance of counsel. See Lozada, 19 I. & N. Dec.
at 638; Goonsuwan, 252 F.3d at 385 n.2.
Huang does not dispute that his second motion to reopen his
deportation proceedings is untimely or barred by the numeric
limitation of 8 C.F.R. § 3.2. Rather, he argues that equitable
tolling applies to his motion because his counsel was
ineffective. Huang argues that his counsel advised him to assert
political persecution rather than China’s coercive one-child
family planning policy as a ground for asylum.
Huang’s first motion to reopen, which he filed pro se,
contains no reference to any such representation by counsel.
Rather, he stated that his application contained mistakes and
omissions because it was not completed by an attorney. Even if
counsel advised Huang to omit his coercive family planning
argument, the record does not demonstrate that Huang’s
deportation proceedings were fundamentally unfair. Huang was
provided with a full deportation hearing and afforded a
translator for the entirety of the proceeding. Even though Huang
made no mention at his hearing with respect to coercive family
planning, the BIA correctly determined that the immigration judge
independently reviewed his application and found no evidence of
persecution based upon the one-child policy. The record also
No. 02-60438
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reflects that the BIA thoroughly reviewed Huang’s family planning
claim in his pro se motion to reopen. Accordingly, Huang cannot
establish that the proceedings were fundamentally unfair. See
Matter of Lozada, 19 I. & N. Dec. at 638. Huang’s petition for
review is DENIED.