           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 24, 2009
                                     No. 08-60450
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

NENG JUAN XUE,

                                                   Petitioner

v.

ERIC H HOLDER, JR., U. S. ATTORNEY GENERAL




                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A94 922 798


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Neng Juan Xue, a native and citizen of the People’s Republic of China,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision dismissing her appeal of the Immigration Judge’s (IJ) denial of the
motion to reopen her in absentia removal proceedings. Xue does not dispute that
she was provided written notice of the March 19, 2007, hearing as required by



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-60450

8 U.S.C. § 1229(a)(1) and (a)(2), nor does she dispute that she was removable as
charged in the Notice to Appear. Instead, Xue argues that she did not attend the
hearing because she received erroneous advice from her attorney, Koston Hi
Feng, that she need not appear because a motion to change venue had been filed.
      An order of removal entered in absentia may be rescinded upon a motion
to reopen filed within 180 days of the removal order if the alien demonstrates
that her failure to appear at the hearing was due to exceptional circumstances.
8 U.S.C. § 1229a(b)(5)(C)(i). The term “exceptional circumstances” is defined as
“exceptional circumstances (such as battery or extreme cruelty to the alien or
any child or parent of the alien, serious illness of the alien, or serious illness or
death of the spouse, child, or parent of the alien, but not including less
compelling circumstances) beyond the control of the alien.” Id. at § 1229a(e)(1).
      The BIA determined that Xue failed to comply with the requirements set
forth in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled in part by In re
Compean, 24 I. & N. Dec. 710 (BIA 2009), because she failed to provide any
evidence that attorney Feng was notified that he had been accused of being
negligent, there was no indication in the bar complaint that Feng was made
aware of the allegations asserted, and Xue provided no evidence that Feng was
informed that he was accused of ineffective assistance of counsel before the
Immigration Judge and the Board. The BIA also found that Xue failed to give
Feng an opportunity to either confirm or dispute the allegations against him.
The BIA also observed that Albert Chow was Xue’s counsel of record when the
hearing notice was mailed, but Xue chose not to accuse Chow of being negligent
in failing to inform her of the hearing scheduled for March 19, 2007. The BIA
concluded that “[t]he Immigration Judge correctly determined that [Xue] failed
to establish that her failure to appear for her hearing was caused by ineffective
assistance of counsel.”
      Xue argues that this finding is not supported by the record. She contends
that she notified Feng of the disciplinary complaint by mailing him a copy and

                                         2
                                  No. 08-60450

that the certificate of service was included in her motion to rescind.         The
certificate of service showing mailing of the disciplinary complaint to Feng is in
the record. However, Xue did not serve Feng with a copy of the motion to reopen
before the IJ. There is no indication that Feng was copied on the cover letter
which indicated Xue’s intent to seek relief from the BIA.          Service of the
disciplinary complaint upon Feng was not sufficient to give Feng the opportunity
to respond to the allegations of ineffective assistance because the Grievance
Committee did not open the case for investigation, and Feng had no notice that
Xue had filed a motion to reopen before the IJ. The BIA found that Xue did not
allege ineffective assistance on the part of Chow for failing to notify her of the
hearing, when Chow was her attorney of record to whom the hearing notice was
sent. The record supports the BIA’s determination that Xue did not give Feng
notice and an opportunity to respond to her allegations of ineffective assistance
“before the Immigration Judge and the Board.” Therefore, the BIA did not abuse
its discretion when it rejected Xue’s ineffective assistance of counsel claim based
on her failure to comply with Lozada’s procedural requirements. See Lara v.
Trominski, 216 F.3d 487, 498-99 (5th Cir. 2000).
      Accordingly, Xue’s petition for review is DENIED.




                                        3
