                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS                       FILED
                                                                     U.S. COURT OF APPEALS
                            FOR THE ELEVENTH CIRCUIT                   ELEVENTH CIRCUIT
                              ________________________                      May 25, 2004
                                                                        THOMAS K. KAHN
                                                                            CLERK
                                    No. 03-13870
                              ________________________

                             Agency Docket No. A77-002-815

ABDULKADIR HAJI DAKANE,

                                                                          Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

                                                                          Respondent.

                              ________________________

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

                                 (May 25, 2004)
                            CORRECTED February 8, 2005

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER *, District
Judge.

PER CURIAM:


       *
       Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
      Abdulkadir Dakane petitions this Court for review of the denial of his

motion to reopen removal proceedings and reconsider the final order of removal

against him based on his claim of ineffective assistance of counsel. We affirm.

      Dakane attempted to enter the United States via Miami International Airport

with the use of a Kenyan passport. Upon questioning by an immigration official,

Dakane stated that he was actually a citizen and national of Somalia; that the

Kenyan passport was false because it had not been legally issued to him but was

purchased in Mogadishu, Somalia; and that he was seeking asylum because, as a

member of a minority clan in Somalia, he feared persecution.

      In removal proceedings, the immigration judge found that although Dakane

had a valid passport, he was not in possession of a valid visa. Furthermore, the

judge found that his testimony with regard to the persecution allegedly suffered in

Somalia and as to how he obtained the Kenyan passport in Mogadishu was not

credible. The judge rejected Dakane’s testimony to support his claim that he is a

Somali national as well as the unauthenticated document he submitted as a Somali

birth certificate. The judge accepted instead the INS’s argument that even if

Dakane was originally from Somalia, he had “firmly resettled” in Kenya pursuant

to 8 C.F.R. § 208.15,1 as he possessed a valid Kenyan citizen’s passport, which had


      1
          8 C.F.R. § 208.15 provides that:


                                             2
been authenticated by the Kenyan Embassy and deemed not to have been altered

by the INS’s Forensic Document Laboratory. Having considered all of the

evidence presented by both sides including the above, the immigration judge found

Dakane to be a national of Kenya and thus, ineligible for asylum.

      Accordingly, the immigration judge held that Dakane: (1) was removeable

pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act

(“INA”) because he was not in possession of a valid visa; (2) failed to establish

that he is a refugee within the meaning of section 101(a)(42)(A) of the INA and

thus was ineligible for asylum and withholding of removal pursuant to section

241(b)(3)(A) of the INA; and (3) was ineligible for withholding of removal under



      An alien is considered to be firmly resettled if, prior to arrival in the United States, he or
      she entered into another country with, or while in that country received, an offer of
      permanent resident status, citizenship, or some other type of permanent resettlement
      unless he or she establishes:

      (a) That his or her entry into that country was a necessary consequence of his or her flight
      from persecution, that he or she remained in that country only as long as was necessary to
      arrange onward travel, and that he or she did not establish significant ties in that country;
      or

      (b) That the conditions of his or her residence in that country were so substantially and
      consciously restricted by the authority of the country of refuge that he or she was not in
      fact resettled. In making his or her determination, the asylum officer or immigration
      judge shall consider the conditions under which other residents of the country live; the
      type of housing, whether permanent or temporary, made available to the refugee; the
      types and extent of employment available to the refugee; and the extent to which the
      refugee received permission to hold property and to enjoy other rights and privileges,
      such as travel documentation that includes a right of entry or reentry, education, public
      relief, or naturalization, ordinarily available to others resident in the country.


                                                 3
the Convention Against Torture (“CAT”) pursuant to § 208.16 of the Code of

Federal Regulations (“CFR”).

      Dakane filed a notice of appeal with the BIA, contesting the findings and

conclusions of the immigration judge. On the day Dakane’s BIA brief was due, he

moved through counsel for a 60-day extension to file, claiming that counsel was

having health problems and had not yet received a complete record of the

proceedings. The BIA granted the extension. Dakane moved for another

extension, which was also granted; however, Dakane’s attorney never filed the

brief. Dakane, represented by new counsel, then submitted a request for leave to

file his brief out of time and a request for a copy of the transcript of his

immigration hearing, claiming ineffective assistance of counsel by his previous

attorney. In support of his request, Dakane attached a copy of his Florida Bar

Complaint Form against his previous attorney with supporting documentation

including a sworn affidavit indicating that he had paid his attorney to represent

him, that she failed to communicate with him regarding the status of his case, and

that she represented to him that she was going to file the appeals brief before the

BIA but never did so. The BIA denied the request for leave to file a late brief

noting that Dakane had been granted two previous extensions.

      On appeal, the BIA affirmed the findings and conclusions of the



                                            4
immigration judge and ordered Dakane removed. Dakane then filed a motion to

reconsider with the BIA and renewed his request for leave to file a brief in support

of his appeal, which the BIA construed as a motion to reopen removal proceedings.

The BIA denied the motion finding that although he properly asserted ineffective

assistance of counsel under “most” of the requirements of Matter of Lozada, 19 I &

N Dec. 636 (BIA 1988), he failed to establish how he was prejudiced by his former

attorney’s failure to file a brief in support of his appeal.2 Dakane appeals that

decision here.

                                        DISCUSSION

       The sole issue before us in this appeal is whether Dakane was required to

demonstrate in his motion to reopen that his counsel’s ineffective assistance

prejudiced his removal proceedings.3


       2
        In this Circuit, we review the BIA’s denial of a motion to reopen removal proceedings
for abuse of discretion. INS v. Abudu, 485 U.S. 94, 110 (1988); Gbaya v. U.S. Att’y Gen., 342
F.3d 1219 (11th Cir. 2003).
       3
         We do not consider the merits of the BIA’s final order of removal against Dakane issued
on March 11, 2004, for lack of jurisdiction. Because Dakane’s removal proceedings commenced
after April 1, 1997, this case is governed by the permanent provisions of the INA, as amended by
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110
Stat. 3009 (1996) (“IIRIRA”). Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th
Cir. 2003). Under section 242(a)(1), (b)(1) of the INA, a petitioner has 30 days from the date of
the final order of removal to seek review in this Court. 8 U.S.C. § 1252(a)(1), (b)(1). Dakane
failed to meet this deadline by filing his petition for review with this Court on August 1, 2003,
over four months from the issuance of the final order of removal. Since the statutory limit for
filing a petition for review in an immigration proceeding is “mandatory and jurisdictional,” it is
not subject to equitable tolling. See Stone v. INS, 514 U.S. 386, 405 (1995) (construing the
former 90-day period for filing a petition for review under the INA § 106(a)(1), 8 U.S.C. §

                                                5
       Congress has provided by statute under section 1229a(c)(6) of the INA that

an alien has the option to file one motion to reopen a final administrative order of

removal within 90 days of that order.4 One of the grounds an alien may claim in a

motion to reopen is ineffective assistance of counsel. See, e.g., Gbaya v. U.S.

Att’y Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). Section 1362 of the INA

provides that aliens have the privilege of having the presence of counsel in their

removal hearings 5 stating that:

       [i]n any removal proceedings before an immigration judge and in any appeal
       proceedings before the Attorney General from any such removal
       proceedings, the person concerned shall have the privilege of being
       represented (at no expense to the Government) by such counsel, authorized
       to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362. It is well established in this Circuit that an alien in civil




1105a(a)). Furthermore, the filing deadline is not
suspended or tolled by the fact that Dakane filed a motion to reopen the removal proceedings
twelve days after issuance of the final order of removal. Id. 514 U.S. at 395. For these reasons,
we find that we do not have jurisdiction to review Dakane’s claims as they relate to his final
order of removal.
       4
           8 U.S.C. § 1229a(c)(6) states that:

       An alien may file one motion to reopen proceedings under this section. 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 . . . the motion
       to reopen shall be filed within 90 days of the date of entry of a final administrative order
       of removal.
       5
         Under the IIRIRA amendments to the INA in 1996, “removal proceedings” in this
section replaced and refers both to exclusion and deportation hearings. See Pub. L. 104-208, §
308(d)(4)(O).

                                                 6
deportation proceedings, while not entitled to a Sixth Amendment right to counsel,

has the constitutional right under the Fifth Amendment Due Process Clause right to

a fundamentally fair hearing to effective assistance of counsel where counsel has

been obtained. Gbaya, 342 F.3d at 1221.6 In order “to establish the ineffective

assistance of counsel in the context of a deportation hearing, an alien must

establish that his or her counsel’s performance was deficient to the point that it

impinged upon the fundamental fairness of the hearing such that the alien was

unable to reasonably present his or her case.” Id. (quoting Mejia Rodriguez v.

Reno, 178 F. 3d 1139, 1146 (11th Cir. 1999) (internal quotes omitted)). See also

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824 (9th Cir. 2003).

       In Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), the BIA addressed the

claim of ineffective counsel in the same context as that presented here:




       6
         We note that inadmissible aliens such as Dakane have traditionally not been able to
claim constitutional due process protections in exclusion proceedings. Shaughnessy v. Mezei,
345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 388 U.S. 537 (1950).
However, the Supreme Court has held that they are ensured a fundamentally fair hearing through
statutory protections provided for by Congress. Shaughnessy, 345 U.S. at 212. As the Third
Circuit has noted, because “Congress has long recognized the importance of counsel in
immigration proceedings” as evidenced by the statutory right to presence of counsel under §
1362 of the INA, inadmissible aliens also have a claim of ineffective assistance, if properly
established, as grounds for a motion to reopen a removal proceeding. See Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 132 (3d. Cir. 2001) (reasoning that “aliens facing exclusion have no
recourse against deficient counsel. Such a ruling would simply encourage abuse. Because aliens
often do not speak English and are usually unfamiliar with our laws and procedures, they are
particularly vulnerable to inadequate counsel.”).


                                              7
       A motion to reopen or reconsider based upon a claim of ineffective
       assistance of counsel requires (1) that the motion be supported by an
       affidavit of the allegedly aggrieved respondent 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) that counsel whose integrity or competence is
       being impugned be informed of the allegations leveled against him and be
       given an opportunity to respond, and (3) that the motion reflect whether a
       complaint has been filed with appropriate disciplinary authorities with
       respect to any violation of counsel's ethical or legal responsibilities, and if
       not, why not.

Id. 19 I & N Dec. at 639.

       This Court has previously determined that the BIA may require aliens to

satisfy the three part Lozada test. Gbaya, 342 F.3d at 1223. However, it is not

disputed by the parties that Dakane substantially complied with the procedural

requirements of Lozada. The issue here is whether we should agree with the

BIA’s further requirement in Lozada 7 that an alien such as Dakane must also prove

that his counsel’s deficient representation resulted in prejudice to him.

       We agree with the Ninth Circuit that, in addition to substantial, if not exact,

compliance with the procedural requirements of Lozada, a petitioner claiming

ineffective assistance of counsel in a motion for reconsideration must also show

prejudice. Rojas-Garcia, 339 F.3d at 826; see also Mejia Rodriguez, 178 F. 3d at



       7
        “The respondent’s motion is wholly insufficient in light of the foregoing guidelines. We
note, moreover, that no prejudice was shown to have resulted from prior counsel’s failure to or
decision not to file a brief in support of the appeal.” Lozada, 19 I & N Dec. at 640.

                                               8
1146 (denying habeas petitioner’s ineffective assistance of counsel claim, which

resulted in ineligibility for suspension of deportation, because alien could not

demonstrate prejudice such that were it not for his counsel’s deficient performance,

he would have received the extraordinary relief). 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. See Mejia Rodriguez, 178 F.3d at 1148; see also Rabiu v. INS, 41 F.3d

879, 882 (2d Cir. 1994) (holding that alien must show that his attorney’s failure to

file for § 212 (c) relief caused him actual prejudice by making a prima facie

showing that he would have been eligible for the relief); Miranda-Lores v. INS, 17

F.3d 84, 85 (5th Cir. 1994) (“[P]roving prejudice requires the Petitioner to make a

prima facie showing that had the application been filed, he would have been

entitled to relief from deportation . . . .”). Where counsel fails to file any appeals

brief in the context of an immigration proceeding, effectively depriving an alien of

an appellate proceeding entirely, there is a rebuttable presumption of prejudice.

Rojas-Garcia, 339 F.3d at 826 (citing Dearinger ex rel. Volkova v. Reno, 232 F.3d

1042, 1045 (9th Cir.2000)).

      In this case, we conclude that the BIA did not err in finding that any

presumption of prejudice in this case due to the failure of Dakane’s counsel to file



                                            9
a brief was rebuttable. As noted by the BIA, Dakane failed to demonstrate or even

address in his motion to reopen how his attorney’s failure to file an appeals brief

would have changed the BIA’s removal order. The basis for the immigration

judge’s decision to deny Dakane’s asylum and withholding of removal claims was

an adverse credibility finding. Having considered all the evidence, the

immigration judge simply did not believe Dakane’s testimony that he was a Somali

citizen who had illegally purchased a Kenyan passport to gain entry to the United

States. The crucial issue at stake in Dakane’s case is proof of his nationality and

identity. We cannot say that the BIA erred in determining that Dakane had failed

to show that an appeals brief could have changed the outcome of the appeal

proceedings before the BIA with regard to that issue, and thus, AFFIRM the BIA’s

denial of Dakane’s motion to reopen.

      AFFIRMED.




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