Luntungan vs. Gonzales, No. 05-9604 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 16, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court FR AN K Y LU N TU N G A N, Petitioner, v. ALBERTO R. GONZA LES, Attorney General, No. 05-9604 (No. A95-554-880) (Petition for Review) Respondent. OR D ER AND JUDGM ENT * Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges. Franky Luntungan petitions for review of an order issued by the Board of Immigration Appeals (BIA) denying his motion to reopen. Finding no abuse of discretion, we affirm the BIA s decision. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Background M r. Luntungan is a native and citizen of Indonesia. He entered the United States in July 1995 with a nonimmigrant visitor visa that entitled him to remain in the United States until January 1996. He overstayed his visa and the Immigration and N aturalization Service issued him a Notice to Appear in April 2003. He conceded that he was removable as charged and applied for asylum and withholding of removal. On M arch 19, 2004, after a hearing on M r. Luntungan s application (at which he was accompanied by Elizabeth Coker, a nonattorney accredited representative, Admin. R. at 20), an immigration judge (IJ) issued an oral decision denying the relief sought but granting M r. Luntungan voluntary departure. M r. Luntungan, through M s. Coker, appealed the IJ s decision to the BIA, but the BIA, on June 10, 2005, affirmed the IJ s decision and dismissed M r. Luntungan s appeal. On September 8, 2005, M r. Luntungan, through a new representative, attorney David Senger, filed a motion to reopen asserting that M s. Coker provided M r. Luntungan ineffective assistance of counsel. On November 22, 2005, the BIA denied M r. Luntungan s m otion to reopen. This timely petition for review followed. Discussion Portions of M r. Luntungan s brief challenge the BIA s June 10 order affirming the IJ s decision. W e lack jurisdiction to review the BIA s June 10 decision because M r. Luntungan did not file a timely petition for review from that -2- decision as required by 8 U.S.C. § 1252(b)(1). See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam). 1 W e do, however, possess jurisdiction to review the BIA s denial of M r. Luntungan s motion to reopen. Infanzon, 386 F.3d at 1361-62. W e review the BIA s denial of the motion for an abuse of discretion. Id. at 1362. W e will reverse only if the BIA s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements. M ahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)). In his motion to reopen and in his petition for review, M r. Luntungan asserts: (1) the brief M s. Coker filed with the BIA challenging the IJ s decision was too short, contained grammatical errors, and could have more advantageously presented his arguments, Pet r Br. at 23; and (2) M s. Coker failed to notify him that the BIA had affirmed the IJ s decision and that he had only 30 days from the date of the BIA s affirmance to file a petition for review. The BIA denied M r. Luntungan s m otion to reopen because he failed to comply with the procedural requirements for asserting a claim of ineffective assistance of counsel as set forth in In re Lozada, 19 I. & N. Dec. 637, 639 1 On August 5, 2005, M r. Luntungan filed a petition for review of the June 10 decision. W e dismissed it as untimely. Luntungan v. Gonzales, No. 05-9567 (10th Cir. Dec. 23, 2005). -3- (BIA 1988), 2 and because he failed to demonstrate that he suffered prejudice as a result of his representative s ineffectiveness, Supp. Admin. R. at 2. See Lozada, 19 I. & N. Dec. at 638 (requiring the aggrieved person to demonstrate he was prejudiced by his representative s performance ). The BIA found that, contrary to Lozada s procedural requirements, M r. Luntungan s motion did not reflect whether M s. Coker had been informed of the allegations against her. See id. at 639. M r. Luntungan takes issue with this finding, asserting that the record contains a certificate of mailing indicating that M s. Coker was sent a copy of the complaint against her. Pet r Br. at 18. Nevertheless, as the BIA properly observed, even if [M r. Luntungan] had fully complied with the [procedural] requirements of Lozada, he still failed to demonstrate prejudice. Supp. Admin. R. at 2; see Lozada, 19 I. & N. Dec. at 638; Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (per curiam) (observing that an alien must show that his counsel s ineffective assistance so prejudiced him that the proceeding was fundamentally unfair ). M r. Luntungan counters that he is not required to show prejudice. In support of this proposition he relies on Sixth Amendment right-to-counsel cases, 2 Lozada requires the motion to be supported by the aggrieved person s affidavit explaining the agreement with former counsel and counsel s representations to the person, evidence that former counsel was informed of and allowed the opportunity to respond to the allegations, and evidence the aggrieved person filed a complaint with appropriate disciplinary authorities or an explanation why this was not done. Infanzon, 386 F.3d at 1361 n.3. -4- Roe v. Flores-Ortega, 528 U.S. 470 (2000), and Peguero v. United States, 526 U.S. 23 (1999), w hich are inapplicable to removal proceedings. See Akinwunmi, 194 F.3d at 1341 n.2 ( [T]here is no Sixth Amendment right to counsel in a deportation proceeding. ); see also Hernandez v. Reno, 238 F.3d 50, 57 (1st Cir. 2001) (declining to apply Flores-Ortega to civil deportation proceedings ). M r. Luntungan also asserts, disregarding Lozada, that the Board has not required the respondent to demonstrate actual prejudice from counsel s ineffectiveness, Pet r Br. at 20. He directs our attention to In re Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996), and In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996), aff d, 122 F.3d 1062 (4th Cir. 1997). M r. Luntungan s argument is misplaced. Both Grijalva-Barrera and Rivera-Claros considered reopening after the entry of an in absentia removal order, a special category of cases for which an alien is not required to show prejudice to obtain rescission of the order. Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2. -5- Conclusion Having reviewed the briefs, the record, and the applicable law, we conclude that the BIA did not abuse its discretion in denying M r. Luntungan s m otion to reopen. A ccordingly, the B IA s order dated November 22, 2005, is AFFIRME D. Entered for the Court Harris L Hartz Circuit Judge -6-

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