                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                   JULY 30, 2007
                                 No. 06-11775                    THOMAS K. KAHN
                             Non-Argument Calendar                    CLERK
                           ________________________

                               BIA No. A97-946-075

YELENA PAVLOVA,


                                                             Petitioner,

                                       versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.

                           ________________________

                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                           _________________________

                                    (July 30, 2007)

Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Yelena Pavlova, a native of Turkmenistan who withdrew her application of

asylum in order to depart voluntarily, petitions for review of the Board of
Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”)

denial of her motion to reopen, which she filed 10 days before the date by which

she had agreed to depart. After a thorough review of the record, we deny the

petition.

                                   I. Background

       After Pavlova attempted to enter the United States in May 2004, and the INS

determined she was inadmissible, the INS served Pavlova with a Notice to Appear,

charging her with removability because she had fraudulently procured a visa, in

violation of INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and because she

had applied for admission without a valid visa or other entry document, in

violation of INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

       Thereafter, Pavlova, with the help of retained counsel Grant Kaplan, filed an

application for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”) and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). Pavlova indicated that she was applying for asylum and withholding of

removal on the basis of her nationality, membership in a particular social group,

and under the CAT. She alleged that, among other things, she had experienced

harm and that she feared mistreatment and torture if she returned, but only stated

that she would explain further in court.
                                           2
         Thereafter, Pavlova filed an unsigned, typed statement, written in English,

describing her life in Turkmenistan. In particular, the statement focused on her

experience of being stalked, harassed, assaulted, kidnaped, and raped by an ex-

boyfriend government official named Murat. Eventually, Kaplan filed a pre-trial

brief on Pavlova’s behalf, arguing that she had experienced past persecution and

was qualified for asylum as the victim of “gender-related violence” and domestic

abuse.

         After appearing at a hearing before an IJ in March 2005, Pavlova agreed to

withdraw her asylum application and depart voluntarily. The IJ’s order stated, in

its entirety:

         Upon agreement of the parties, the applicant withdraws her
         [application for asylum and withholding of removal] with prejudice
         [and] agrees to depart on or before [July 8, 2005]. If she so departs[,]
         these proceedings will terminate. If[,] however, she remains in the
         United States beyond [July 8, 2005], an order of removal on the
         charges contained in the [NTA] will issue automatically [without] the
         benefit of further proceedings or hearing[s].


         About 10 days before the voluntary departure date, Pavlova, represented by

new counsel Matthew Baxter, filed a motion to “recalendar” her proceedings and

an affidavit in support of the motion alleging that Kaplan had rendered ineffective

assistance by failing to fully apprise her of the removal process, failing to

sufficiently prepare for the hearing, and providing incorrect information regarding

                                             3
voluntary departure and possible alternatives to asylum.

      In support of her request to “recalendar” the matter, Pavlova asserted that the

IJ’s suggestion that she could still secure a visa was “fatally flawed” because there

was “virtually no chance” she would receive a visa in light of her fraud charges.

Accordingly, she argued that her decision to withdraw her motion was not knowing

or voluntary, that the agreement embodied in the IJ’s order was fundamentally

unfair, and that she had been deprived of due process and of her day in court.

Notably, Pavlova’s motion did not state that Kaplan had been informed of her

allegations and had been given an opportunity to respond, or that a complaint had

been filed against Kaplan with a disciplinary authority.

      On July 6, 2005, the IJ ruled on Pavlova’s motion to recalendar, construing

it as a motion to reopen and denying it because the motion was untimely, the

record did not support the allegations, the decision to withdraw the asylum

application was voluntary, and Pavlova had failed to comply with In re Lozada, 19

I&N Dec. 637 (BIA 1988).

      Pavlova appealed this decision to the BIA, asserting that (a) the IJ should

have treated her motion as one filed prior to the entry of a decision under the

“catch-all” provision in 8 C.F.R. § 1003.23(a) rather than as a motion to reopen;

(b) Kaplan’s ineffective assistance was clear on the record and that as a result of

his conduct she had entered the agreement to withdraw her application; and (c) the
                                           4
agreement was not knowing or voluntary and was fundamentally unfair.

Specifically, she argued that: (1) voluntary departure was unavailable to her and

that the order did not grant her this relief, but instead the order simply allowed her

to withdraw her application, making it likely that she would be inadmissable under

INA § 212(a)(9)(B)(i)(I), 8 U.S.C. § 1182(a)(9)(B)(i)(I); (2) unless she was granted

asylum or withholding of removal she was “most likely inadmissible under INA

§ 212(a)(6)(C)(i),” 8 U.S.C. § 1182(a)(6)(C)(i); (3) “there [was] virtually no

chance that [she would] ever receive a visa of any kind” because she had been

charged with procuring a visa fraudulently; and (4) the “odds against [her] lawful

return [were] so prohibitive that it [could not] properly be supposed that [Kaplan]

had a sound legal strategy in mind” and any benefit to her was illusory. Finally,

Pavlova argued that the IJ breached its duty by giving her flawed advice, denied

her the right to have her asylum claim adjudicated, and further aggravated the harm

done by Kaplan.

       The BIA dismissed the appeal, finding that Pavlova had “failed to

demonstrate that the conduct of her previous attorney was so egregious as to render

the proceedings unfair,” citing Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th

Cir. 2005), In re B-B-, and Lozada. Pavlova then petitioned this court for review.1

       1
         Pavlova also filed a separate motion for reconsideration with the BIA. The BIA
apparently granted it, at least in part, and remanded Pavlova’s case to the IJ to issue an order of
removal and designate a country of removal. Pavlova then moved this court to dismiss her
                                                  5
                                        II. Discussion

       Pavlova challenges the decision to construe her motion to recalendar as a

motion to reopen. She also disputes the BIA’s finding that her counsel’s alleged

ineffective assistance was not so egregious as to render her original removal

proceeding unfair. Finally, Pavlova argues that the IJ’s personal involvement in

her decision to withdraw her application also prejudiced her.

              A. Motion to Recalendar

       Because the BIA did not adopt the IJ’s opinion, we will review only the

BIA’s decision in this case. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). “We review the BIA’s denial of a motion to reopen for an abuse of

discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).

“[This] 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.” Id. (quotation marks omitted). “In this particular area, the BIA’s

discretion is quite broad.” Anin v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999)

(quotation marks omitted).

       The INA does not define a motion to recalendar. Federal regulations refer to



appeal without prejudice due to a lack of jurisdiction as a result of the BIA’s remand. However,
in an order entered October 12, 2006, this court denied Pavlova’s motion and allowed her appeal
to proceed, holding that the BIA’s limited remand had not interrupted our jurisdiction over the
appeal.
                                                 6
such a motion, but generally only in the context of a case that has been

administratively closed or continued, and usually in reference to the government,

not the alien.2 See e.g. 8 C.F.R. §§ 245a.20(e)(2)(i), 1240.70(g).

       In general, an alien may file one motion to reopen removal proceedings.

INA § 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7)(A). “An [IJ] may upon his or her own

motion at any time, or upon motion of the [government] or the alien, reopen . . .

any case in which he or she has made a decision, unless jurisdiction is vested with

the [BIA].” 8 C.F.R. § 1003.23(b)(1) (emphasis added). Nevertheless, an alien

must generally file a motion to reopen within 90 days of “the date of entry of a

final administrative order of removal, deportation, or exclusion.” Id.; INA

§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).

       “The motion to reopen shall state the new facts that will be proven at a

hearing to be held if the motion is granted, and shall be supported by affidavits or

other evidentiary material.” INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B); 8

C.F.R. § 1003.23(b)(3). “A motion to reopen will not be granted unless the [IJ] is

satisfied that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R.



       2
         Thus, “[i]n the case of an alien whose previously initiated exclusion, deportation, or
removal proceeding had been administratively closed or continued indefinitely . . . the
[government] shall make a request for recalendaring.” 8 C.F.R. § 245.15(r)(ii); 8 C.F.R. §
1245.15(r)(2)(ii).
                                                7
§ 1003.23(b)(3).

      We need not decide whether the IJ improperly treated the motion as a

motion to re-open rather than a motion to recalendar because we conclude that any

error is harmless as the circumstances in this case would have justified denying the

motion to re-open. Accordingly, we deny her petition as to this issue.

             B. Ineffective Assistance of Counsel

      Generally, in order to allege ineffective assistance of counsel in a motion to

reopen, an alien must: (1) attach an affidavit to the motion; (2) inform the former

counsel of the allegations and provide an opportunity to respond; and (3) indicate

whether or not a complaint has been filed with the appropriate disciplinary

authority. In re Lozada, 19 I&N Dec. at 639. This court has held that the BIA may

require “substantial, if not exact, compliance” with the Lozada procedure. Dakane,

399 F.3d 1274. In addition to the procedural requirements, the alien must show

that “the conduct of former counsel was so egregious that it rendered [the] hearing

unfair.” In re B-B-, 22 I&N Dec. at 311; see also Dakane, 399 F.3d at 1274

(holding that the alien must demonstrate prejudice, which “exists when the

performance of counsel is so inadequate that it may have affected the outcome of

the proceedings”).

      “The Attorney General may permit an alien voluntarily to depart the United

States at the alien’s own expense . . . in lieu of being subject to [removal]
                                           8
proceedings . . . or prior to the completion of such proceedings, if the alien is not

deportable [due to conviction for certain crimes or terrorist activities].” INA

§ 240B(a)(1), 8 U.S.C. § 1229c(a)(1); see also 8 C.F.R. § 1240.26 (b)(2).

      “[T]he voluntary departure grant involves a quid pro quo arrangement

between an alien and the [g]overnment . . . . In return for departing within the time

afforded for voluntary departure, an alien avoids certain adverse consequences of a

removal order.” In re Zmijewska, 24 I&N Dec. 87, 92 (BIA 2007) (citing INA

§ 212(a)(9)(A)(ii), 8 U.S.C. § 1182(a)(9)(A)(ii) (declaring an alien who has been

ordered removed from the United States inadmissible for 10 years). Further,

voluntary departure provides a “generous period” in which to prepare for the actual

departure. See In re B-B-, 22 I&N Dec. at 311. The BIA has held that “there are

strong policy reasons for strictly adhering to and enforcing voluntary departure

orders, not the least of which is to discourage dilatory behavior.” Id. at 310.

Further, “subsequent dissatisfaction with a strategic decision of counsel is not

grounds to reopen.” Id.

      Although the record in this case suggests that Pavlova never fully complied

with Lozada’s procedural requirements, the BIA based its order on her failure to

show prejudice. See Dakane, 399 F.3d at 1272 (noting “most” of the Lozada

requirements were satisfied, but discussing prejudice). Here, Pavlova has failed to

even suggest that she would not have been ordered removed but for her counsel’s
                                           9
alleged misrepresentation. She merely refers to her application for asylum,

“however strong or weak,” as her “only chance” to remain in this country. Cf.

Dakane, 399 F.3d at 1275 (explaining that the petitioner had failed to show

prejudice where he had neglected to “demonstrate or even address” how his

counsel’s alleged ineffectiveness “would have changed the . . . removal order.”).

       The record here suggests that Pavlova decided to pursue an alternative to her

asylum request and affirmatively waived a hearing on that issue by withdrawing

her application. See Reno v. Flores, 507 U.S. 292, 309, 113 S.Ct. 1439, 1450-51,

123 L.Ed.2d 1 (1993) (holding that “due process is satisfied by giving the detained

alien juveniles the right to a hearing before an [IJ],” assuming they were competent

to exercise that right, regardless of whether they actually exercised it). Pavlova

cites no legal authority to support her allegation that she was “unduly influenced”

into accepting the agreement, and does not point to any specific fact in the record

in this regard.

       Although voluntary departure is clearly less favorable than asylum, its

benefits are still superior to removal, and there was never any guarantee that

Pavlova would have prevailed on her application. This being so, the agreement

was not illusory, and if it did also result in the abandonment of the asylum

application, that was Pavlova’s choice. As noted above, a change of heart is not a

sufficient basis for granting a motion to reopen. In re B-B-, 22 I&N Dec. at 310.
                                          10
                                        III. Conclusion

       In sum, Pavlova has failed to establish that she suffered prejudice as a result

of counsel’s conduct, and the BIA did not abuse its discretion in affirming the IJ’s

denial of her motion to reopen.3 Accordingly, we DENY the petition.




       3
         To the extent that Pavlova moves, in her initial brief, for reconsideration of our earlier
order denying her request to dismiss her petition without prejudice pending the conclusion of the
ongoing administrative proceedings, that motion is DENIED as nothing she alleges changes the
analysis or result of that order. Similarly, nothing about those proceedings requires us to stay
consideration of this appeal.
                                                  11
