UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-5089
Summary Calendar
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EVELIO MIRANDA-LORES,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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Petition for Review of an Order of
Immigration and Naturalization Service
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(March 9, 1994)
Before DAVIS, JONES, AND DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
BACKGROUND
Petitioner is a twenty-seven year old Cuban national. He
entered the United States in 1970 and was accorded permanent
resident status in 1974. In February 1992, the Immigration and
Naturalization Service initiated deportation proceedings against
Petitioner as a result of his conviction for cocaine distribution.
Aided by counsel, Petitioner conceded his deportability and
announced his intention to seek § 212(c) relief.
At the final deportation hearing, the immigration judge noted
that an application for § 212(c) relief had not been filed. After
hearing explanations from both Petitioner's attorney and
Petitioner, the judge found that Petitioner had abandoned his claim
for relief and ordered him deported to Cuba.
Petitioner appealed the judge's order alleging that had he
been effectively represented by counsel, he would have filed a
timely application for § 212(c) relief. The Board found that
failure to file the application was not due to ineffective
assistance of counsel. The Board also found that Petitioner did
not comply with the procedural requirements for making an
ineffective assistance of counsel claim and did not establish that
he was prejudiced by the failure to file the application.
Petitioner appeals the Board's decision.
DISCUSSION
To prevail on a claim of ineffective assistance of counsel at
a deportation proceeding,1 an alien must show (1) ineffective
representation and (2) substantial prejudice, which occurred as a
result of the ineffective representation. See, Ogbemudia v. INS,
988 F.2d 595, 598 (5th Cir. 1993). Assuming without deciding that
failure to file an application for § 212(c) relief was due to
ineffective representation, Petitioner's claim must be denied
because, as found by the Board, he did not show that he was
prejudiced.
In this case, proving prejudice requires the Petitioner to
make a prima facie showing that had the application been filed, he
1
We assume without deciding that an alien has the right to bring
an ineffective assistance of counsel claim in a deportation
proceeding. See Paul v. INS, 521 F.2d 194, 197-198 (5th Cir.
1986).
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would have been entitled to relief from deportation under § 212(c).
See, e.g., Figeroa v. United States INS, 886 F.2d 76, 79 (4th Cir.
1989) (holding that ineffective representation did not result in
prejudice because alien could not establish a prima facie showing
that he was entitled to a grant of asylum under 8 U.S.C. § 1158);
Patel v. United States INS, 803 F.2d 804, 807 (5th Cir. 1986)
(finding that immigration judge's refusal to grant a motion for
continuance did not result in prejudice where the alien conceded
deportability and did not allege eligibility for discretionary
relief). In his appeal to the Board, Petitioner did not allege any
facts that would have merited the grant of relief.2 Furthermore,
we can not consider Petitioner's attempts to do so on appeal
because our review is limited to the administrative record. See
Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir. 1991).3
Petitioner requests that we remand this case so that evidence
regarding his entitlement to § 212(c) relief may be considered.
Under 28 U.S.C. § 2347(c), we may order a remand if (1) the
additional evidence sought to be offered is material and (2) there
were reasonable grounds for the alien's failure to submit the
2
When reviewing a § 212(c) application for deportation relief,
the Board balances the "adverse factors evidencing an alien's
undesirability as a permanent resident with the social and humane
considerations presented in his behalf." Matter of Marin, 16 I &
N Dec. 581, 584 (BIA 1978); see also Diaz-Resendez v. INS, 960 F.2d
493, 495-96 (5th Cir. 1992). Here Petitioner did not allege, to
the Board, any favorable considerations.
3
Because we affirm the Board's finding that Petitioner failed
to show that he was prejudiced by alleged ineffective assistance of
counsel, we need not address Petitioner's claim that he received
ineffective assistance.
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additional evidence to the agency. Bernal-Garcia v. INS, 852 F.2d
144, 147 (5th Cir. 1988); Fleurinor v. INS, 585 F.2d 129, 133 (5th
Cir. 1978). Petitioner has not satisfied the second prong of the
§ 2347(c) test; he offers no explanation for his failure to submit
this evidence to the Board. Therefore, Petitioner's request for a
remand is denied.
CONCLUSION
For the foregoing reasons, the decision of the Board of
Immigration Appeals is
AFFIRMED.
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