[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 19, 2006
No. 05-17208 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-437-623
SIANTONO WENAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 19, 2006)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Siantono Wenas, a citizen of Indonesia and a Chinese Christian, seeks
review of a final order by the Board of Immigration Appeals (“BIA”), denying his
motion to reopen the BIA’s order denying asylum under Immigration and
Nationality Act (“INA”) § 208(a)(1), 8 U.S.C. § 1158(a)(1), and withholding of
removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). After the BIA adopted and
affirmed the immigration judge’s (“IJ”) decision denying Wenas’s application for
asylum and withholding of removal, he filed a motion to reopen. Wenas argued
that his previous attorney, who represented him in proceedings before the IJ and
BIA, was ineffective because he failed to submit any documentation supporting
Wenas’s claim that Chinese Christians are persecuted in Indonesia. In support of
his motion to reopen, Wenas submitted several documents concerning religious
violence in Indonesia.
On appeal, Wenas argues that the BIA relied on the wrong standard for
determining prejudice in an ineffective assistance claim, requiring him to show that
“it [was] likely that [he] would have prevailed” below. Citing to Dakane v. U.S.
Attorney General, 399 F.3d 1269 (11th Cir. 2005) (per curiam), he contends that
the correct standard is a reasonable probability of a different outcome, which is less
stringent than the “more likely than not standard.” Moreover, he argues, we
subsequently corrected our initial opinion in Dakane, clarifying that the reasonable
probability standard is the correct standard, but the BIA cited to the earlier,
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uncorrected opinion. Consequently, Wenas asserts, we must remand the case
because it cannot be upheld on any grounds not articulated in the record. Next, he
contends that he was prejudiced by his attorney’s representation because there was
a reasonable probability that the omitted supporting documentation would have
shown that there was a pattern or practice of discrimination against Chinese
Christians in Indonesia, entitling him to a presumption that he would face future
persecution if he returned to Indonesia.
We have construed 8 U.S.C. § 1252(a)(1) to give us jurisdiction to review
orders on motions to reopen, implicitly considering such orders to be “final
order[s] of removal” under the statute. Patel v. U. S. Att’y Gen., 334 F.3d 1259,
1261 (11th Cir. 2003). We review the denial of a motion to reopen removal
proceedings for an abuse of discretion. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,
1340 (11th Cir. 2003) (per curiam). We will overturn the BIA’s decision only if it
exercised its discretion in an arbitrary or capricious manner. Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (per curiam).
An alien can move to reopen proceedings on the basis of ineffective
assistance of counsel, but “to establish the ineffective assistance of counsel in the
context of a deportation hearing, an alien must establish that his or her counsel's
performance was deficient to the point that it impinged upon the fundamental
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fairness of the hearing such that the alien was unable to reasonably present his or
her case.” Dakane, 399 F.3d at 1274 (quotations and citations omitted). To do
this, the petitioner must show prejudice, which means that the petitioner must
demonstrate a “reasonable probability that but for the attorney’s error, the outcome
of the proceedings would have been different.” Id.
Wenas’s argument that the BIA relied on an incorrect standard for
determining ineffective assistance of counsel, holding him to a stricter “more likely
than not” standard, is meritless. The BIA explicitly stated that prejudice in this
context “means that it is likely that an alien would have prevailed”–not that the
alien “more likely than not” would have prevailed, as Wenas claims. Moreover, in
Dakane, we cited with approval several variations of the above-stated standard,
including: (1) “[An] alien must show . . . actual prejudice by making a prima facie
showing that he would have been eligible for the relief,” and (2) “[P]roving
prejudice requires the Petitioner to make a prima facie showing that . . . he would
have been entitled to relief . . . .” 399 F.3d at 1274 (quotations and citations
omitted). Thus, the BIA’s substitution of the term “likely” for “reasonable
probability,” when it otherwise correctly stated the law, is insufficient to show that
the BIA applied an incorrect standard.
Wenas’s argument that there was a reasonable probability that the omitted
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documentation would have led to a different outcome in his proceedings is
similarly unpersuasive. Before denying Wenas’s application, the IJ considered the
2002 Department of State Country Report on Human Rights Practices for
Indonesia and the 2003 Department of State International Religious Freedom
Report for Indonesia (“the Reports”), both of which adequately conveyed
Indonesia’s history of religious violence against Chinese Christians. The
additional materials Wenas filed with his motion to reopen predate the Reports and
are largely generalized accounts of religious violence in Indonesia. These
additional materials do not demonstrate a reasonable probability of a different
outcome in Wenas’s proceedings. Therefore, because the IJ adequately considered
Indonesia’s history of religious violence, the BIA did not abuse its discretion in
concluding that Wenas’s attorney’s failure to file supporting documentation did not
prejudice Wenas.
Because Wenas has not established that the BIA applied an incorrect
standard of review or that his attorney’s omission of supporting documentation
prejudiced him, the BIA did not abuse its discretion in denying Wenas’s motion to
reopen its order.1 Accordingly, we deny the petition.
1
To the extent that Wenas challenges the IJ’s and BIA’s underlying decision denying his
application for asylum and withholding of removal, Wenas did not file a petition for review of
the original BIA decision on appeal, and, thus, the merits of that appeal, as well as the merits of
the IJ decision, are outside of our jurisdiction. See Jaggernauth v. U.S. Att’y Gen., 432 F.3d
5
PETITION DENIED.
1346, 1350 (11th Cir. 2005) (per curiam) (citing INA § 242(b)(1)-(2), 8 U.S.C. § 1252(b)(1)-(2))
(“To seek judicial review of an order of removal, an alien must file a petition for review with the
federal appellate court within 30 days of the BIA’s issuance of the final order.”); see also
Dakane, 399 F.3d at 1272 n.3 (holding that this limitation period is “‘mandatory and
jurisdictional’”) (quoting Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549, 131 L. Ed. 2d
465 (1995)).
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