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

                                                 FILED
                                                                        September 30, 2009

                                       No. 08-60452                    Charles R. Fulbruge III
                                                                               Clerk

SHAN FU CUI,

                                                   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. A94-803-568


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Shan Fu Cui, a native and citizen of China, entered the United States
without being lawfully admitted or paroled and without a valid entry document
on July 15, 2006. According to a report by the border patrol, Cui stated that she
entered the United States in order to live in New York and to become a
Christian, and she stated that she did not fear persecution if removed to China.
An immigration officer determined that Cui was inadmissible as an immigrant



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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not in possession of a valid entry document under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
and ordered her removed to China pursuant to 8 U.S.C. § 1225(b)(1).
       Before the removal was carried out, an asylum officer interviewed Cui on
October 16, 2006; the officer determined that Cui had a credible fear that upon
returning to China she would be persecuted because of her religious faith.
       The day after the officer’s report was completed, the Department of
Homeland Security (DHS) personally served Cui with a notice to appear,
charging her as removable under § 1182(a)(7)(A)(i)(I) as an alien present in the
United States who had not been admitted or paroled and who was not in
possession of a valid entry document. However, the notice to appear did not
inform Cui of the date or time of her immigration hearing, stating that those
details were “[t]o be determined.”
       On January 11, 2007, Cui informed the Immigration and Naturalization
Service (INS) that she had been released from immigration detention on bond
and would be residing at a certain address.         On January 26, 2007, the
immigration court mailed notice to Cui’s attorney, Ronald Higgins, that a master
immigration hearing had been scheduled in her case for February 26, 2007, at
9:00 a.m.   Notice was not sent to Cui directly.     On February 7, 2007, the
immigration court mailed an amended notice to Higgins informing him that the
master hearing in Cui’s case had been rescheduled for March 19, 2007, at 9:00
a.m. As with the previous notice, the amended notice was not sent directly to
Cui.
       When neither Cui nor Higgins appeared at the March 19, 2007 hearing,
the Immigration Judge (IJ) ordered Cui’s removal in absentia pursuant to 8
U.S.C. § 1229a(b)(5)(A) the same day. Cui secured new counsel and timely filed
a motion to reopen removal proceedings on May 14, 2007. See § 1229a(b)(5)(C)
(setting 180-day limitations period in certain cases and no limitation in others).
Cui asserted that she did not receive notice of the immigration hearing even

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though she had continuously resided at the address disclosed to INS officials and
checked the mail daily, and that she only learned of her removal order when she
hired a new attorney and asked him to check on her court date. Cui set forth
these claims in a sworn declaration, in which she also stated that she “had
intended to appear for all of my Immigration Court hearings and the only reason
I did not appear on March 19, 2007 was because I did not receive notice of the
hearing.”
       The IJ denied the motion after finding that the service of the hearing
notice on Cui’s attorney was legally sufficient and that Cui had failed to comply
with the requirements for alleging ineffective assistance of counsel under In re
Lozada, 19 I. & N. Dec. 637, 637–40 (BIA 1988).1 The IJ acknowledged “what
has become a reoccuring claim in cases involving attorney Higgins and Guerrero:
no notice was provided; their client did not know they had to appear; there was
no communication between attorney and client,” but the IJ said that “[s]uch has
been consuming too much of this Court’s limited administrative time.” The IJ
also expressed frustration with Cui’s current attorney for only engaging in the



       1
         Lozada requires that an alien filing a motion to reopen based on ineffective assistance
of counsel: (1) submit an affidavit setting forth in detail the agreement entered into with
former counsel regarding the actions to be taken on the alien’s behalf and what counsel did
or did not represent to the alien in this regard; (2) inform counsel of the allegations and allow
him an opportunity to respond — any response or report of counsel’s failure or refusal to
respond should be submitted with the motion; and (3) state whether a complaint had been filed
with the appropriate disciplinary authority if counsel’s handling of the case involved a
violation of legal or ethical responsibilities. Lozada, 19 I. & N. Dec. at 639. The Lozada
framework has been questioned but remains good law. See In re Compean, 24 I. & N. Dec.
710, 726–27 (BIA 2009) (overruling portions of Lozada and concluding that no constitutional
right to counsel or effective assistance of counsel exists in immigration proceedings); vacated
by In re Compean, 25 I. & N. Dec. 1, 3 (BIA 2009) (initiating rule-making and instructing
courts to “apply the pre-Compean standards to all pending and future motions to reopen based
upon ineffective assistance of counsel, regardless of when such motions were filed”). We
conclude that this matter should be considered under the law existing at the time the IJ made
his decision such that Lozada applies. In any event, we do not find an abuse of discretion in
the IJ’s determination that Cui’s failure to seek an explanation for her attorney’s conduct
dooms her ineffective assistance of counsel claim.

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“most limited” verification of the facts at hand, for apparently failing to review
the record or to contact Cui’s previous attorney, and for filing a motion to reopen
that “does not appear to be well-grounded in fact or warranted by existing law
or by any good faith argument whatsoever.”
      Cui appealed, but the Board of Immigration Appeals (BIA) dismissed after
finding that the notice sent to attorney Higgins was legally sufficient and that
Cui’s failure to comply with the requirements of Lozada for asserting a claim of
ineffective assistance of counsel justified the IJ’s determination that Cui failed
to demonstrate ineffective assistance of counsel. Cui timely filed a petition for
review in this court.
      The denial of a motion to reopen is reviewed for an abuse of discretion.
Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007). “Neither the BIA
nor the IJ abuses its discretion so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational approach.” Id.
(internal quotation marks and citation omitted). “It is by definition an abuse of
discretion when an IJ makes an error of law or has considered the wrong factors
in applying his discretion (the judgment call was made as to issues or factors not
within the scope of his discretionary powers).” Alarcon-Chavez v. Gonzales, 403
F.3d 343, 345 (5th Cir. 2005) (internal quotation marks, citations, and footnotes
omitted).
      We find no error in the BIA’s determination that notice to Cui’s attorney
was sufficient. Section 1229a(b)(5)(A) of the Immigration and Nationality Act
(INA) provides that
      Any alien who, after written notice required under paragraph (1) or
      (2) of [§ 1229(a)] has been provided to the alien or the alien’s counsel
      of record, does not attend a proceeding under this section, shall be
      ordered removed in absentia if the Service establishes by clear,
      unequivocal, and convincing evidence that the written notice was so
      provided and that the alien is removable . . . . The written notice by

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       the Attorney General shall be considered sufficient for purposes of
       this subparagraph if provided at the most recent address provided
       under [§ 1229(a)(1)(F)].


The section of the INA referenced in § 1229a(b)(5)(A), § 1229(a), provides that
written notice of an immigration hearing or of any change or postponement in
the time and place of such proceedings “shall be given in person to the alien (or,
if personal service is not practicable, through service by mail to the alien or to
the alien’s counsel of record, if any).” § 1229(a)(1), (a)(2)(A); see also 8 C.F.R. §
1003.13 (“[A] Notice to Appear or Notice of Removal Hearing shall be served to
the alien in person, or if personal service is not practicable, shall be served by
regular mail to the alien or the alien’s attorney of record.”).
       Where personal delivery is not practicable,2 the statute specifically allows
mailing of notice either to the alien or her attorney. Martin v. Mukasey, 517 F.3d
1201, 1203 (10th Cir. 2008) (notice to counsel satisfies statutory notice
requirements). It does not require both. Cui has wholly failed to show that her
attorney did not receive the notice sent.3 She made no attempt before the IJ,
BIA, or here to comply with Lozada or otherwise show ineffective assistance of
counsel beyond her bare allegations that her attorney was responsible for the
nonappearance.4       We have held that the general application of the Lozada


       2
         Cui argues only that notice to her attorney was insufficient to notify her. She does
not argue that personal service upon her was practicable. Nor does she point to any evidence
that the implied finding that personal notice to her was impracticable is incorrect.
       3
          Specifically, the IJ found that Cui did not determine whether Higgins received notice
and, if he did, what his explanation was for failing to appear. Her only “evidence” on this point
is that her attorney’s failure to appear at the hearing “calls into question whether or not
Petitioner’s attorney received the notice of hearing.” This statement is insufficient to meet her
burden on appeal to this court of an adverse ruling on a discretionary motion.
       4
           The government asserts that we lack jurisdiction because Cui did not comply with
the requirements of Lozada. While Cui’s failure to fulfill Lozada’s requirements may be fatal
to her claim, they do not deprive this court of jurisdiction when the issue was raised before the
IJ and BIA.

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requirements is not an abuse of discretion. Lara v. Trominski, 216 F.3d 487, 498
(5th Cir. 2000). The IJ’s statements that there have been problems with this
attorney are not evidence of ineffective assistance of counsel. See, e.g., United
States v. Paiva, 892 F.2d 148, 158 (1st Cir. 1989) (a judge may not generally
testify in a case over which he is presiding); United States v. Cisneros, 491 F.2d
1068, 1075–76 (5th Cir. 1974) (same).5
       Given our highly deferential review of BIA decisions on motions to reopen,
we cannot find error in this decision. See Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009) (“In reviewing the denial of a motion to reopen, this
court applies a highly deferential abuse-of-discretion standard, regardless of the
basis of the alien’s request for relief.”). Accordingly, the petition for review is
DENIED.




       5
          While these cases involve the potential prejudice to a jury of a judge acting in such
a way as to become a witness in the case, we believe that it is generally true that a judge
cannot be both a judge and witness in the same case. See Recent Cases, 28 HARV . L. REV . 100,
115 (1914)(addressing the history of this rule). Allowing Cui to use the IJ’s remarks about
attorney Higgins’s general conduct as evidence of her ineffective assistance claim would violate
this general rule. In any event, we do not think that the IJ’s offhand remark was intended as
evidence that Cui’s attorney was ineffective.

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