United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 27, 2006
Charles R. Fulbruge III
Clerk
No. 06-60056
Summary Calendar
ALICIA COBAN DIXON-BUSH; TANISHA NICOLE DIXON-BUSH,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of a Decision of
the Board of Immigration Appeals
BIA No. A98 120 110
BIA No. A98 120 111
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alicia Coban Dixon-Bush and her minor daughter Tanisha
Nicole Dixon-Bush (hereinafter referred to as the petitioners)
have filed a petition for review of a final order of the Board of
Immigration Appeals (BIA) affirming the denial of their motion to
reopen their removal proceeding as untimely. The petitioners
were ordered removed in absentia when they failed to appear at
the immigration hearing.
*
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this opinion should not be published and is not precedent except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. 06-60056
-2-
As an initial matter, because the petitioners did not file a
petition for review from the BIA’s order denying their motion to
reconsider, we lack jurisdiction to address that denial. See
Stone v. INS, 514 U.S. 386, 394 (1995).
The decision to reopen proceedings is a discretionary
decision, and this court applies a highly deferential abuse-of-
discretion standard when reviewing the BIA’s denial of a motion
to reopen. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
An in absentia order of removal may be rescinded upon a motion to
reopen filed within 180 days after the date of the order of
removal, if the alien demonstrates that the failure to appear was
because of exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C).
Petitioners argue that former counsel’s ineffective
assistance entitles them to tolling of the period for filing
their motion to reopen. Even if we assume without deciding that
such tolling is available to the petitioners, they still have not
shown that they are entitled to it. The record does not show
that the petitioner filed an appropriate complaint in relation to
counsel’s alleged deficiencies as required by In re Lozada, 19 I.
& N. Dec. 637, 639 (BIA 1988). As the petitioners failed to
comply with the Lozada requirement of filing a complaint against
counsel, this court should reject their equitable-tolling
argument on this basis. See Lara, 216 F.3d at 496. Thus, in the
absence of tolling, the motion to reopen, filed more than 180
days after the entry of the absentia removal order, was untimely.
No. 06-60056
-3-
Accordingly, the BIA did not abuse its discretion in denying the
motion. See Lara, 216 F.3d at 496. The petitioners’ petition
for review is DENIED.