[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-15037
Non-Argument Calendar FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2005
Agency No. A96-437-581 THOMAS K. KAHN
CLERK
LO HARDY PRAWIRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 20, 2005)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Lo Hardy Prawira, a native of Indonesia, petitions this Court for review of
the Board of Immigration Appeals (“BIA”) order affirming without opinion an
Immigration Judge’s denial of his motion to reopen his removal proceedings. He
argues that his due process rights were violated because he received ineffective
assistance of counsel. For the reasons stated more fully below, we deny the
petition.
Prawira entered the United States on or about July 3, 2001, as a non-
immigrant visitor with authorization to remain in the United States no later than
January 2, 2002, and was served with a notice to appear on April 15, 2003,
charging Prawira with removability for remaining in the United States for a longer
time than permitted, INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Prawira then
filed an application for asylum and withholding of removal on the basis of his race
and religion, signed on August 5, 2003. When asked to explain the circumstances
of his fear, harm, or mistreatment, Prawira typed “please see attachment for
details,” and indicated that he feared that he would “be persecuted and tortured due
to my ethnicity background and religious belief if I am returned to Indonesia.” The
attachment was nothing more than a blank page.
The record does not contain any transcripts or excerpts of a hearing before
an IJ, but does contain the order of an IJ dated March 3, 2004. The order indicates
that Prawira withdrew his application for asylum and withholding of removal and
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instead, requested voluntary departure, which was granted. On March 31, 2004,
Prawira filed, through counsel, a motion to reopen his proceedings, stating that his
previous attorney had informed him that he had no other choice but to apply for
voluntary departure. Prawira stated that he was scared and confused and continued
to be afraid of returning to Indonesia because of his Chinese ethnicity and
Christian religious beliefs. Attached to the motion to reopen were Prawira’s birth
certificate, a change of name document, Prawira’s mother’s birth certificate, and
Prawira’s baptism certificate.
The IJ issued a written decision indicating that Prawira had attended a
hearing on July 22, 2003, at which time he admitted the allegations in his notice to
appear and conceded removability. The IJ’s decision also confirmed that, on
March 3, 2004, Prawira had appeared and, with the assistance of an interpreter,
withdrew his application for asylum and withholding of removal and was granted
relief in the form of voluntary departure. After noting that “[l]itigants are
generally bound by the conduct of their attorneys absent egregious circumstances
that rendered the hearing unfair,” the IJ denied the motion to reopen. The IJ found
that (1) Prawira failed to meet the procedural requirements necessary for prevailing
on an ineffective assistance of counsel claim; (2) before accepting Prawira’s
withdrawal of his application for asylum, the IJ had recessed proceedings to permit
Prawira to discuss with his counsel whether or not he wished to proceed and, after
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questioning Prawira to ensure he was acting knowingly, intelligently, and
voluntarily, further informed Prawira that if he withdrew his application, it would
be with prejudice; and (3) based on the foregoing, Prawira had a full opportunity to
pursue his application and Prawira had failed to provide the IJ with a basis for
reopening the proceedings.
Prawira filed a notice of appeal with the BIA, arguing that the IJ’s decision
should be vacated because the IJ failed to take into consideration the totality of the
circumstances surrounding Prawira’s past persecution and well-founded fear of
return to Indonesia because of his ethnicity and religious beliefs. He also argued
that his counsel during the removal proceedings gave him bad advice and,
therefore, his counsel’s assistance was ineffective and the functional equivalent of
not being represented at all. Prawira’s brief to the BIA raised several arguments,
including that (1) the one-year time bar for filing an asylum application should not
apply because he received ineffective assistance of counsel; (2) the evidence
showed that he had been persecuted by Indonesian natives because of his ethnicity
and religion and had a well-founded fear of persecution if returned to Indonesia;
and (3) his Fifth Amendment Due Process rights had been violated because his
counsel’s advice at his removal proceedings “was grossly wrong” and was the
equivalent of having no representation. On September 8, 2004, the BIA affirmed
the decision of the IJ without opinion in a per curiam decision.
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On appeal, Prawira argues that his due process rights were violated because,
during his removal proceedings, his counsel erroneously advised him that the only
relief for which Prawira was eligible was voluntary departure and, despite having a
brief recess to talk to his counsel, Prawira did not have time to think through his
decision or to seek other advice. Because he had a strong case for withholding of
removal, he argues that the ineffective assistance of counsel was sufficient to
reopen his proceedings.
Because Prawira’s removal proceedings commenced after April 1, 1997, the
effective date of IIRIRA, this case is governed by the permanent provisions of the
INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d
1331, 1332 (11th Cir. 2003).1 When the BIA summarily affirmed the IJ’s decision
without an opinion, the IJ’s decision became the final order subject to review. See
Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003)
(citing 8 C.F.R. § 3.1(a)(7) (2002))
1
Pursuant to the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, enacted into law
on May 11, 2005, the commencement date of a petitioner’s removal proceedings appears to be
no longer important, as even “transitional rules” cases are now governed under the review
provisions of IIRIRA. The text of the law reads:
A petition for review filed under former section 106(a) of the Immigration and
Nationality Act (as in effect before its repeal by section 306(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252
note)) shall be treated as if it had been filed as a petition for review under section
242 of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this
section.
Pub. L. 109-13, 119 Stat. 231, Division B.
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We review the denial of a motion to reopen for an abuse of discretion. Mejia
Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). Judicial review of a
denial of a motion to reopen in deportation proceedings is limited to determining
“whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.” Garcia-Mir v. Smith, 766 F.2d
1478, 1490 (11th Cir. 1985) (internal quotations and citation omitted). Motions to
reopen are disfavored, especially 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.” Immigration and Naturalization Serv. v.
Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992).
Pursuant to the Fifth Amendment Due Process Clause, “[a]liens enjoy the
right to effective assistance of counsel in deportation proceedings.” Mejia
Rodriguez, 178 F.3d at 1146. “[T]o establish the ineffective assistance of counsel
in the context of a deportation proceeding, an alien must establish that his or her
counsel’s performance was deficient to the point that it impinged upon the
fundamental fairness of the hearing such that the alien was unable to reasonably
present his or her case.” Dakane v. United States Attorney General, 399 F.3d 1269,
1273-74 (11th Cir. 2005) (internal quotations and citation omitted).
The BIA has required that, when filing a motion to reopen based on a claim
of ineffective assistance of counsel, the alien must: (1) submit an affidavit attesting
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to the relevant facts; (2) inform former counsel of the allegations and allow an
opportunity to respond; and (3) if asserting that the prior counsel’s handling of the
case violated ethical or legal responsibilities, state whether a complaint has been
filed with the appropriate disciplinary authorities, and, if not, why not. Matter of
Lozada, 19 I&N Dec. 637, 639 (1988). We have held that the BIA does not abuse
its discretion by requiring aliens to meet the three procedural requirements of
Lozada. Gbaya v. United States Attorney Gen., 342 F.3d 1219, 1221-23 (11th Cir.
2003).
Here, the IJ did not abuse its discretion by denying Prawira’s motion to
reopen his deportation proceedings. The IJ found that Prawira had failed to submit
any of the evidence required under Lozada, and as the record reflects, Prawira’s
motion did not contain an affidavit setting forth Prawira’s agreement with counsel
or the representations counsel did or did not make, did not demonstrate that
Prawira’s counsel had been notified and given a chance to respond, and did not
reflect whether or not a complaint had been filed with disciplinary authorities
regarding the legality or ethical nature of his counsel’s actions. Lozada, 19 I&N
Dec. at 639. Accordingly, the IJ did not abuse its discretion by denying Prawira’s
motion to reopen because he failed to comply with the procedural requirements set
forth by the BIA. Compare Dakane, 399 F.3d at 1274 (finding that, because it was
not disputed that the petitioner had substantially complied with the procedural
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requirements of Lozada, it was necessary to address whether the petitioner also had
to prove prejudice from his counsel’s deficient performance); see also Gbaya, 342
F.3d at 1222-23 (approving of the Lozada requirements and determining that the
petitioner had neither strictly nor substantially complied with those requirements
and, therefore, it was not an abuse of discretion to deny petitioner’s motion to
reopen).
PETITION DENIED.
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