                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                              JUNE 17, 2005
                            No. 04-15528                    THOMAS K. KAHN
                        Non-Argument Calendar                   CLERK
                      ________________________

                         BIA Nos. A77-002-942,
                                  A77-002-943

MARIA DEL PILAR CAJIAO,
ANDRES OREJUELA,

                                                     Petitioners,

     versus

U.S. ATTORNEY GENERAL,

                                                     Respondent.

                     __________________________

                   Petition for Review of an Order of the
                       Board of Immigration Appeals
                      _________________________

                              (June 17, 2005)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Maria Del Pilar Cajiao and her husband, Andres Orejuela, (collectively

“petitioners”), proceeding pro se, petition for review of the Board of Immigration

Appeals’ (“BIA’s”) denial of their motion to reopen, which was based on

ineffective assistance of counsel. After review, we dismiss the October 27, 2004

petition to the extent it seeks review of the BIA’s December 10, 2002 order

affirming the Immigration Judge’s (“IJ’s”) removal order. We deny the

petitioners’ October 27, 2004 petition to the extent it seeks review of the BIA’s

October 8, 2004 denial of petitioners’ motion to reopen.1

                                     I. BACKGROUND

       Petitioners are natives and citizens of Colombia. On March 9, 1999, the

INS issued petitioners a Notice to Appear, which alleged that petitioners sought to

enter the United States on February 26, 1999, by presenting a backdated stamp to

conceal an overstay. The Notice charged petitioners with removability under 8

U.S.C. §§ 1182(a)(6)(C)(i) and (a)(7)(A)(i)(I). The petitioners, represented by

counsel, conceded removability and requested asylum, withholding of removal,

and relief under Article 3 of the United Nations Convention Against Torture and



       1
          Because the petitioners’ removal proceedings commenced after April 1, 1997, the permanent
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (1996) apply. Gonzalez-Oropeza v. United States Att’y Gen., 321 F.3d 1331,
1332 (11th Cir. 2003).

                                                2
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

The petitioners asserted that they had been mistreated and threatened based on

their membership in a social group, namely a financially well-off class.

A.    Asylum Applications

      In her application, Cajiao indicated that she and her family had been

targeted by guerillas in Colombia for kidnaping and extortion because her family

was in the construction business and a member of the industrial class, as well as a

member of the conservative political party. Cajaio further stated that on at least

two separate occasions, kidnappers attempted to grab her and her children.

Further, her brother was kidnaped but managed to escape. Cajaio stated that she

feared that if she returned to Colombia, the guerillas would rape or kill her if her

family did not pay them. In support of her application, Cajiao submitted the

affidavits of her brothers, a friend, and her niece.

      Orejuela filed a separate application, alleging the same basis for asylum as

Cajiao and attaching the same affidavits. Orejuela also stated that he feared that

the guerillas would rape his wife and kill them if they did not pay the guerillas.

B.    Hearing Before the IJ

      During a hearing before the IJ, Cajiao testified that she and her husband had

a house-construction business in Cali, Colombia, owned property, and were

                                           3
financially well-off. Cajaio testified that one day when she and her husband,

along with their children, were driving down the street, three men approached her

husband’s window and pointed a weapon at his head, threatening to kill him. The

men asked for everything they had in their possession and then left. Cajiao

believed that the men had wanted to kidnap them but could not do so because of

the heavy traffic. They told a police officer about what had happened but he stated

he could not do anything. Cajaio did not file a police report because she was

afraid of the police.

      Cajaio testified that on another occasion she was followed when driving

with her daughter and niece. When she and the children stepped out of their car,

three men exited from a taxi. Cajaio approached a police officer and told him that

she was being followed, but the officer stated he could not do anything. She went

to a store and called the police. She described one of the men to the police officers

when they arrived, and the officer acted as if he recognized the description but

then said he did not know the man. Cajaio was frightened that the officer

recognized the description but refused to acknowledge it, so she declined to be

escorted home. No confrontation took place between Cajiao and the men in the

taxi, and she did not report the incident further.




                                           4
       Cajiao also testified that on another occasion when she stopped at a light on

her way to pick up her husband, four men with machine guns stepped out of a

Jeep. Cajiao drove away quickly, without paying attention to traffic lights. She

did not have any contact with them. Cajaio testified that she did not know the

identity of any of the individuals involved in any of the three incidents. After the

last incident, she and her husband decided to obtain visas. When they returned

from Bogota, where they had obtained a visa for her husband, the doorman at their

condominium informed them that a list was being circulated by the guerillas with

their name on it.

       Orejula also testified at the hearing. His testimony included some of the

same events as Cajiao’s testimony, and testimony regarding the couple’s financial

situation in Colombia2




       2
         The evidence before the IJ also included the U.S. State Department’s Colombia Country
Reports on Human Rights Practices for 1997. The 1997 report stated that Colombia has been
plagued by internal violence and rampant killings for years. The major active guerilla organizations
are the Revolutionary Armed Forces of Colombia and the National Liberation Army. The report
stated that one group targeted by the guerillas consists of people who refuse to submit to recruitment
or extortion, and that the guerillas have committed many human rights abuses including killings and
kidnaping. The 1997 report indicated that a small number of asylum claims are received from
applicants alleging that their membership in a wealthy business and/or landowning class puts them
at particular risk from guerilla groups. However, in most of these cases, the terrorists are using
extortion or ransom to obtain funds to finance their activities.


                                                  5
      Also during the hearing, the petitioners’ counsel attempted to introduce

photographs of the petitioners’ house to show that it was a nice house. The IJ

denied their introduction because counsel had failed to follow a local rule

requiring parties to submit the evidence they would seek to introduce at the

hearing ten days prior to the hearing. Petitioners’ counsel also had newspaper

articles about the situation in Colombia, but did not try to introduce them because

of the ten-day local rule.

      After the hearing, the IJ denied the petitioners’ application for asylum,

withholding of removal, and CAT relief. The IJ found that the petitioners failed to

establish either past persecution or a well-founded fear of persecution. The IJ

further determined that the petitioners failed to meet their burden of proving that

anyone in Colombia persecuted them based on any of the five enumerated grounds

for asylum. Further, the IJ found that Cajiao’s asylum application lacked detail

and gave no weight to the attached affidavits. Additionally, the IJ found that the

petitioners failed to provide any police reports or background materials

establishing a credible fear of the police. The IJ also found that petitioners’

testimony lacked credibility.

C.    Appeal to the BIA




                                          6
       The petitioners, with new counsel, appealed to the BIA, arguing that they

had established that they were targeted based on their economic status. They also

argued that if they did not meet their burden of proof for asylum, it was because

their counsel during the proceedings before the IJ was ineffective. Specifically,

they argued that former counsel had failed to comply with the ten-day rule, which

prevented them from submitting several documents revealing the political and

socio-economic situation in Cali, Columbia. They also argued that former counsel

was to blame for the lack of detail in the asylum applications and the general

nature of the affidavits. The petitioners also noted former counsel’s failure to

submit documentation concerning police corruption. Additionally, petitioners

stated that they had filed a complaint about their former counsel with the Florida

Bar.

       On December 10, 2002, the BIA affirmed the IJ’s decision to deny

petitioners relief. The BIA determined that, contrary to the IJ’s finding, the

petitioners’ testimony was credible. However, the BIA determined that petitioners

had failed to show that their alleged persecution was motivated by any of the five

statutory grounds for asylum. Concerning the ineffective-assistance-of-counsel

claim, the BIA found that petitioners had not sufficiently complied with the

requirements of Matter of Lozada, 19 I.&N. Dec. 637, 638-39 (BIA 1988), aff’d,

                                          7
857 F.2d 10 (1st Cir. 1988). Specifically, the BIA found no evidence that

petitioners had notified former counsel of their complaint and permitted counsel

an opportunity to respond.3

       Further, the BIA found that petitioners failed to establish that their former

counsel’s conduct had affected the outcome of their case, noting that they had

testified in detail at the asylum hearing and supplemented the record with

documentary information from the United States State Department concerning the

conditions in Colombia. The BIA stated that, in the absence of a more complete

showing, the petitioners had not demonstrated any prejudice due to the actions of

their former counsel.

       The petitioners did not appeal the BIA’s December 10, 2002 decision to this

Court. Instead, on February 7, 2003, the petitioners filed a motion with the BIA to

reopen their removal proceedings. In their motion to reopen, they argued that their

former counsel’s lack of professionalism and failure to present documents affected

the IJ’s decision to deny their asylum applications. The petitioners further

       3
          A motion based on ineffective assistance of counsel must: (1) be supported with an affidavit
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) reflect that the petitioner has informed counsel whose integrity or competence is being impugned
of the allegations leveled against him and allow counsel an opportunity to respond, and (3) show that
a complaint has been filed with appropriate disciplinary authorities with respect to any violation of
counsel’s ethical or legal responsibilities and if no complaint was filed, explain why not. Matter of
Lozada, 19 I. & N. Dec. 637, 638-39 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988).

                                                  8
submitted additional documentary evidence and arguments regarding the merits of

their asylum claim.

       On October 8, 2004, the BIA denied the petitioners’ motion to reopen. The

BIA determined that although the petitioners now complied with the requirements

in Matter of Lozada, “they have still failed to prove any prejudice resulting from

their former counsel’s performance.” Further, the BIA determined that the

petitioners had failed to set forth any facts showing that their alleged persecution

was based on a protected ground.

                                   II. DISCUSSION

       A.     IJ’s Asylum Decision

       On appeal, the petitioners first argue that the BIA erred in its December 10,

2002 order affirming the IJ’s decision to deny asylum, withholding of removal,

and CAT relief. We do not have jurisdiction to review that December 10, 2002

order as the petitioners did not file a timely petition for review from the BIA’s

December 10, 2002 order affirming the IJ’s decision.4

       While we generally have jurisdiction to review final orders of removal, the

petition for review must be filed within 30 days of the date of the final order of



       4
       We review de novo whether we have subject-matter jurisdiction. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002).

                                             9
removal. See INA 242(a)(1), (b)(1), 8 U.S.C. § 1252(a)(1), (b)(1). The statutory

time limit for filing a direct petition for review in an immigration case is

“mandatory and jurisdictional” and is not subject to equitable tolling. Dakane v.

United States Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). The BIA’s

final order of removal in this case was filed on December 10, 2002, and the

petition for review was filed on October 27, 2004, which is more than 30 days

after the BIA’s order was entered.

B.    Motion to Reopen

      The petitioners also argue that the BIA erred in its October 8, 2004 order

denying their motion to reopen because their former counsel was ineffective.

Petitioners maintain that they were prejudiced by their counsel’s ineffectiveness.

They assert that they were not granted asylum due partly to the fact that no

witnesses, other than themselves, or documents were presented to the IJ, including

newspaper articles in counsel’s possession describing the turmoil in Colombia.

The petitioners also maintain that they were prejudiced because the asylum

application lacked detail. They argue that had their counsel been better prepared

and presented evidence of their persecution and the situation in Colombia, they

would have been granted asylum.




                                          10
      We review the BIA’s denial of a motion to reopen removal proceedings for

abuse of discretion. Dakane, 399 F.3d at 1272 n.2. The BIA abuses its discretion

when its decision “provides no rational explanation, inexplicably departs from

established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir.

2003) (internal quotation marks and citations omitted). Motions to reopen are

disfavored, especially in a removal proceeding, “where, as a general matter, every

delay works to the advantage of the deportable alien who wishes merely to remain

in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724-25

(1992).

      A petitioner claiming ineffective assistance of counsel must demonstrate

substantial compliance with the Lozada requirements as well as prejudice.

Dakane, 399 F.3d at 1274. “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. (citations

omitted).

      In this case, the BIA did not abuse its discretion by denying the motion to

reopen because the petitioners failed to show that they were prejudiced by their

counsel’s representation. Because persecution based on economic status is

                                          11
insufficient to establish persecution on account of membership in a particular

social group, see Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996) (low economic status

is not a social group), the petitioners have failed to establish a reasonable

probability that the outcome of the proceedings before the IJ would have been

different if petitioners’ former counsel had included more detail in their

application or submitted newspaper articles describing the turmoil in Colombia.

      Further, petitioners have presented no evidence or documentation that their

counsel should have submitted that would have established that petitioners were

victims of any more than harassment, criminal activity, or extortion, which do not

amount to persecution. See Sepulveda v. United States Att’y Gen., 401 F.3d 1226,

1231 (11th Cir. 2005) (“Persecution” is “an extreme concept requiring more than a

few isolated incidents of verbal harassment or intimidation,” and “mere

harassment does not amount to persecution.”); Abdille v. Ashcroft, 242 F.3d 477,

494-95 (3d Cir. 2001) (evidence that an individual has been the victim of criminal

activity does not constitute evidence of persecution); Bolshakov v. INS, 133 F.3d

1279, 1281 (9th Cir. 1998) (involving a factually similar case and concluding that

the Russian-citizen petitioners were victims of criminal activity, not of

persecution).

      PETITION DISMISSED IN PART; DENIED IN PART.

                                          12
