United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007
Charles R. Fulbruge III
No. 06-60417 Clerk
Summary Calendar
RAMZAN ALI LAKHANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of
the Board of Immigration Appeals
No. A79 008 101
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Ramzan Lakhani, a native and citizen of Pakistan, petitions
for review of a decision of the Board of Immigration Appeals
(“BIA”) denying, as untimely, his motion to reopen. He contends
the BIA violated his due process rights when it denied his motion
to reopen based on ineffective assistance of counsel.
This court has not determined whether an alien has a constitu-
tional right to effective counsel in removal proceedings. Gutier-
*
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opinion should not be published and is not precedent except under the limited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.
rez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). Neverthe-
less, we have “stated several times in dicta . . . that an alien’s
right to due process is violated when the representation afforded
[him] was so deficient as to impinge upon the fundamental fairness
of the hearing, and, as a result, the alien suffered substantial
prejudice.” Id. (internal quotation marks and citations omitted).
Lakhani’s ineffective assistance of counsel claim relates to
the denial of his motion to remand to pursue an adjustment of sta-
tus based on his marriage to a United States citizen. An applica-
tion for an adjustment of status is a request for discretionary re-
lief and, thus, it is not a right protected by due process. See
Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). Because
counsel’s alleged deficiencies merely restricted Lakhani’s chance
of obtaining discretionary relief, Lakhani had no due process right
to effective assistance in pursuit of that relief. See Gutierrez-
Morales, 461 F.3d at 609.
Lakhani also contends the BIA abused its discretion when it
denied his motion to reopen based on ineffective assistance. Mo-
tions to reopen removal proceedings are disfavored, and we review
the denial of a motion to reopen “under a highly deferential abuse-
of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303-04
(5th Cir. 2005).
A motion to reopen removal proceedings “must be filed no later
than 90 days after the date on which the final administrative deci-
sion was rendered in the proceeding sought to be reopened.”
2
8 C.F.R. § 1003.2(c)(2). The final administrative decision in Lak-
hani’s removal proceeding was issued on February 14, 2005. Lak-
hani’s motion to reopen, filed on March 14, 2006, was therefore
untimely.
Lakhani contends that former counsel’s ineffective assistance
entitles him to equitable tolling of the period for filing a motion
to reopen. Assuming arguendo that such tolling is available to
Lakhani, he has failed to show that the BIA abused its discretion
when it determined that equitable tolling was not warranted because
he had failed to establish ineffective assistance. See Zhao, 404
F.3d at 304.
Accordingly, the BIA did not abuse its discretion in denying
Lakhani’s motion to reopen. The petition for review is DENIED.
3