                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                               FOR THE TENTH CIRCUIT


    WIDYAWATI RESNY DELARIVA;
    BONA PASU MAROJOHAN,

                Petitioners,

    v.                                                  No. 08-9501
                                                    (Petition for Review)
    ERIC H. HOLDER, JR., *
    United States Attorney General,

                Respondent.


                               ORDER AND JUDGMENT **


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         On October 11, 2006, petitioners (husband and wife) appeared with counsel

at a hearing before an immigration judge (IJ) on their applications for asylum,

restriction on removal and protection under the Convention Against Torture.


*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
The IJ denied their applications and noted that any notice of appeal was due no

later than “Nov. 13, 2006.” R. at 56. Petitioners admit they were aware of the

deadline. More than seven months after the deadline expired, petitioners, through

new counsel, filed with the Board of Immigration Appeals (BIA) a notice of

appeal and “Motion For Late Filing Of Notice Of Appeal Based On Ineffective

Assistance Of Counsel.” R. at 26. They asked the BIA to accept their untimely

appeal on the grounds that their previous lawyer promised to file an appeal but

failed to do so. Specifically, they argued that the failure to file an appeal

“represents an exceptional situation created by the ineffective assistance of [their

previous lawyer], resulting in a denial of [their] constitutionally mandated right to

due process and right to counsel.” Id. at 27.

      The BIA denied the motion and dismissed the appeal for lack of

jurisdiction. It concluded that even though petitioners’ “motion does seem to

establish substantial compliance with the procedural requirements to establish an

ineffective assistance of counsel claim . . . there is no objective evidence of any

agreement entered into for representation during the appeal process.” Id. at 2-3.

It further concluded that because petitioners were aware of the deadline, their

failure to file a timely appeal did not “warrant acceptance of [the] appeal on

certification,” nor was there prejudice. Id. at 3.

      On appeal, petitioners advance a mix of arguments. First, accepting

petitioners’ characterization of their “Motion For Late Filing Of Notice Of Appeal

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Based On Ineffective Assistance Of Counsel” as a motion to reopen, we deny the

petition. “The decision to grant or deny a motion to reopen proceedings is within

the BIA’s discretion.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.

2005) (citing 8 C.F.R. § 1003.2(a)). “We 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.”

Id. (quotation marks omitted). The order carefully examined the facts

surrounding the alleged failure to file the appeal and discussed relevant statutes,

regulations, case law, and BIA precedent.

      Next, citing Zhong Guang Sun v. United States Department of Justice,

421 F.3d 105 (2d Cir. 2005) and Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005),

petitioners argue “the BIA may nonetheless take jurisdiction over an untimely

appeal in rare or extraordinary circumstances by certifying a case for review.”

Pet’r Br. at 4-5. These cases are inapposite because they concern instances where

the BIA failed to exercise its discretion. Here, the BIA considered the

circumstances surrounding the untimely filing and exercised its discretion to deny

the motion. Moreover, to the extent petitioners challenge the BIA’s refusal to

accept the case on certification under 8 C.F.R. § 1003.1(c), we lack jurisdiction

over that issue because there are no standards by which to judge the agency’s

exercise of discretion. Mahamat, 430 F.3d at 1284.




                                         -3-
      Last, petitioners claim “the totality of the circumstances . . . represents an

extraordinary circumstance as it is in effect a violation of [their] right to due

process. Based on their right to due process and right to counsel [they] need not

show prejudice.” Pet’r Br. at 6-7. Setting aside the fact there is no Sixth

Amendment right to counsel in deportation proceedings, an alien’s constitutional

rights arise under the Fifth Amendment’s guarantee of due process and require a

showing of prejudice. Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir.

1999) (per curiam). The standard for showing prejudice in this context is

“whether there is a reasonable likelihood” the outcome would have been different.

United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc). 1

Petitioners have not even attempted to demonstrate how an appeal would have




1
       We note that since briefing was completed, the Attorney General issued an
opinion in which he concluded that aliens in removal proceedings have no
constitutional right to counsel under the Fifth or Sixth Amendments, and that “to
establish prejudice arising from a lawyer’s deficient performance sufficient to
permit reopening, the alien must show that but for the deficient performance, it is
more likely than not that the alien would have been entitled to the ultimate relief
he was seeking.” Matter of Compean, 24 I. & N. Dec. 710, 726, 733-34 (A.G.
2009). Even if we followed Compean, it would have no impact on our
disposition.

                                          -4-
changed the outcome; indeed, it is difficult to imagine how they could do so given

the concession their lawyer was not ineffective at the merits hearing.

      The petition is DENIED.

                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




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