                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                    January 12, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-60864
                           Summary Calendar


                        CANDIDO ALBERTO RUBIO,

                                                          Petitioner,

                                versus

                JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                                          Respondent.


               Petition for Review from an Order of the
                     Board of Immigration Appeals
                             (A91-828-903)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Candido Alberto Rubio has filed a petition for review of a

final order of the Board of Immigration Appeals (BIA) denying his

motion to reopen his removal proceeding.         Rubio’s underlying

request for cancellation of removal was denied because it was

determined that he had not established five years of lawful,

continuous, physical presence in the United States.       See 8 U.S.C.

§ 1229b(a).




     *
       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this opinion should not be published and is not precedent except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.
     “The BIA’s factual findings are reviewed for substantial

evidence;   rulings       of   law,   de       novo,    deferring     to    the     BIA’s

interpretation of the immigration statutes.”                     Mireles-Valdez v.

Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003) (internal citation

omitted).        Denial   of   a   motion       to     reopen   in   an    immigration

proceeding is reviewed only for abuse of discretion.                              INS v.

Doherty, 502 U.S. 314, 323 (1992).

     “Congress explicitly granted federal courts the power to

review ‘final order[s] of removal’ in [8 U.S.C.] § 1252(a)(1), and

‘implicit in this jurisdictional grant is the authority to review

orders denying motions to reopen any such final order’.”                     Assaad v.

Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (quoting Patel v.

United States Attorney General, 334 F.3d 1259, 1261 (11th Cir.

2003)).   However, “where a final order of removal is shielded from

judicial review by a provision in [8 U.S.C.] § 1252(a)(2), so, too,

is [the BIA’s] refusal to reopen that order”.                         Id. (internal

quotations omitted). Because the denial of Rubio’s cancellation of

removal request was based on a determination that he was not

statutorily eligible for that relief, we would have jurisdiction to

review    that    determination       if       it    were   currently      before    us.

Mireles-Valdez, 349 F.3d at 216-17 (interpreting § 1252(a)(2)(B)).

Given that fact, we have jurisdiction to review the denial of

Rubio’s motion to reopen.



                                           2
     Rubio’s motion to reopen was based on his assertion that he

received ineffective assistance of counsel during his removal

proceedings.       Rubio   contended    that,   absent   counsel’s     poor

performance, he would have been found statutorily eligible for

cancellation of removal and would have been granted that relief.

     Based on our review of the record, there was substantial

evidence to support the BIA’s finding that Rubio did not enter this

country until after 1 January 1982 and, therefore, was not properly

admitted    for   lawful   residency.     See   8   U.S.C.    §   1255a(2).

Accordingly, Rubio did not meet the statutory requirements for

cancellation of removal under 8 U.S.C. § 1229b(a).           Because   Rubio

has not shown that his former counsel’s actions denied him a fair

hearing or due process, his ineffective assistance of counsel claim

fails.     See Matter of Lozada, 19 I & N Dec. 637, 638 (BIA 1988).

Therefore, the BIA did not abuse its discretion in denying the

motion to reopen.

                                                                  DENIED




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