[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 13, 2009
No. 08-12141 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
Agency No. A95-542-806
LUIS E. ALARCON LEON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 13, 2009)
Before EDMONDSON, Chief Judge, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Luis Leon (“Petitioner”) is a native and citizen of Columbia. He
seeks review of the Bureau of Immigration Appeals’ (“BIA”) denial of his appeal
of the Immigration Judge’s (“IJ”) denial of his Motion to Reopen. Petitioner had
moved to reopen the IJ’s final order of a grant of voluntary departure. Petitioner
contends for and relies on ineffective assistance of counsel: he contends that his
counsel coerced him into withdrawing his application for asylum, withholding of
removal, and protection under the United Nations Convention on Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Petitioner’s
counsel denied these contentions in an affidavit, and the IJ found Petitioner not
credible. Because Petitioner failed to establish that he was prejudiced by counsel’s
alleged ineffectiveness, the IJ and the BIA did not abuse their discretion in
rejecting his Motion to Reopen. No reversible error has been shown; we affirm.
“We review the denial of a motion to reopen removal proceedings for abuse
of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “Our
review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Cisceros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.
2008)(quotations omitted). Motions to reopen are disfavored, especially in
removal proceedings, “where, as a general matter, every delay works to the
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advantage of the deportable alien who wishes merely to remain in the United
States.” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).
“Congress has provided by statute under section 1229a(c)(6) of the INA that
an alien has the option to file one motion to reopen a final administrative order of
removal within 90 days of that order. One of the grounds an alien may claim in a
motion to reopen is ineffective assistance of counsel.” Dukane v. U.S. Att’y Gen.,
399 F.3d 1269, 1273 (11th Cir. 2005). This Court has decided that the BIA may
require the alien to meet the following test to show ineffective assistance of
counsel:
A motion to reopen or reconsider based upon a claim of ineffective
assistance of counsel requires (1) that the motion be supported by an
affidavit of the allegedly aggrieved respondent setting forth in detail
the agreement that was entered into with counsel with respect to the
actions to be taken and what representations counsel did or did not
make to the respondent in this regard, (2) that counsel whose integrity
or competence is being impugned be informed of the allegations
leveled against him and be given an opportunity to respond, and (3)
that the motion reflect whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of
counsel’s ethical or legal responsibilities, and if not, why not.
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Dukane, 399 F.3d at 1274.
In addition to complying with these procedural requirements, a petitioner claiming
ineffective assistance of counsel “must also show prejudice.” Id. “Prejudice exists
when the performance of counsel is so inadequate that there is a reasonable
probability that but for the attorney’s error, the outcome of the proceedings would
have been different.” Id.
Petitioner failed to show a reasonable probability that the outcome of the
proceedings would have been different if Petitioner’s counsel had performed
differently. Given our limited and deferential standard of review, we decide that
the BIA and the IJ did not abuse their discretion in denying Petitioner’s Motion to
Reopen; and we affirm their decisions.
AFFIRMED
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