     Case: 09-60377     Document: 00511231231          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 09-60377
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JACEK PAWKA,

                                                   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. A029 948 329


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jacek Pawka, a native and citizen of Poland, petitions this court for review
of the decision of the Bureau of Immigration Affairs (BIA) denying his second
motion to reopen his 1991 deportation proceedings held in absentia.
        Even if Pawka has met the requirement that his motion be based upon
material evidence that he could not have previously discovered, see 8 C.F.R.
§ 1003.2(c)(1), his petition lacks merit. Although he claims that he failed to
receive notice of the 1991 hearing, Pawka does not deny that his then-attorney,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60377       Document: 00511231231 Page: 2               Date Filed: 09/13/2010
                                    No. 09-60377

Mike Herrera, received notice of it; adequate notice on Herrera constituted
adequate notice on Pawka. See 8 C.F.R. § 292.5(a); Men Keng Chang v. Jiungi,
669 F.2d 275, 277 (5th Cir. 1982); Matter of Barocio, 19 I.&N. Dec. 255, 259 (BIA
1985).
       Pawka’s claims that Herrera failed to notify him of the 1991 hearing,
despite his attempts to recast them in terms of notice, allege ineffective
assistance by Herrera such that Pawka was required to satisfy the requirements
set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988),1 to succeed on his
motion. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). As he has
failed to brief his assertion that he satisfied the Lozada requirements, including
the requirement that he file an affidavit setting forth in sufficient detail the
parameters of his attorney-client relationship with Herrera, he has abandoned
the claim. See F ED. R. A PP. P. 28(a)(9)(A); Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003). Accordingly, he has failed to show that the BIA abused its
considerable discretion by denying the motion for failure to comply with Lozada.
See Lara, 216 F.3d at 496-98. To the extent that Pawka bases his claim on a
lack of notice due to an incorrect address, we likewise find no abuse of discretion
in the BIA’s resolution of the issue. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th
Cir. 2005). His argument that his due process rights were violated by the denial



       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, 725-27(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 the
agency 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”).

                                               2
  Case: 09-60377   Document: 00511231231 Page: 3     Date Filed: 09/13/2010
                               No. 09-60377

is foreclosed. See Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir.
2009).
     Pawka’s petition for review is DENIED and his motion for stay is DENIED
AS MOOT.




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