          United States Court of Appeals
                      For the First Circuit

No. 18-1522

                       ADOLFO FRANCO-ARDON,

                           Petitioner,

                                v.

                        WILLIAM P. BARR,
                        ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                               Before
                   Lynch, Thompson, and Barron,
                          Circuit Judges.


     Randy Olen on brief for petitioner.
     Laura Halliday Hickein, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, Shelley R. Goad, Assistant Director,
Office of Immigration Litigation, U.S. Department of Justice, on
brief for respondent.



                          April 26, 2019


	



     
       Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Acting Attorney
General Matthew G. Whitaker as the respondent.
           BARRON, Circuit    Judge.     Adolfo    Franco-Ardon    ("Franco-

Ardon"), a Guatemalan citizen, petitions for review of the Board

of Immigration Appeals' ("BIA") denial of his motion to reopen his

2012 order of removal. Franco-Ardon based that motion on his prior

counsel's alleged ineffective assistance of counsel in failing to

file a brief with this Court in his petition for review of the

BIA's denial of his earlier challenge to that removal order.                We

deny the petition.

                                    I.

           Franco-Ardon's petition arises from the following set of

circumstances.      On   January   18,     2012,    the   BIA   affirmed   the

Immigration Judge's (IJ) decision ordering his removal and denying

his request for asylum, withholding of removal, and protection

under   the   Convention     Against     Torture.         Franco-Ardon     then

petitioned for review of the BIA's ruling to our Court in Franco-

Ardon v. Holder, C.A. No. 12-1214.          We dismissed the petition on

October 23, 2012.    We did so on the ground that Franco-Ardon had

failed to file a brief pursuant to Local Rules 45.0(a) and 3.0(b).

           Franco-Ardon thereafter made a number of applications

for a stay of removal to this Court, the last of which we denied

in August of 2017 and thus many years after he had filed his

petition for review of the BIA's ruling affirming his order of

removal.   Franco-Ardon then retained new counsel, who investigated

the reasons for our dismissal of Franco-Ardon's 2012 petition for

                                   - 2 -
review.   That counsel informed Franco-Ardon that his petition for

review had been dismissed due to his former counsel's failure to

file a brief to our Court.

           In the wake of having been so informed, on January 10,

2018, Franco-Ardon filed a motion to reopen with the BIA.    He did

so on the ground that his prior counsel had provided him with

ineffective assistance of counsel by failing to file the opening

brief before this Court in his petition for review.   The BIA denied

the motion to reopen on May 18, 2018.       The BIA concluded that

Franco-Ardon had failed to establish either the requisite due

diligence to excuse his failure to comply with the 90-day filing

deadline for motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i),

or a "likelihood of success" regarding his ineffective assistance

of counsel claim "based on prevailing First Circuit precedent"

which the BIA did not specify.     Franco-Ardon now petitions from

the BIA's denial of his motion to reopen.

                                 II.

           The government contends that we lack jurisdiction over

Franco-Ardon's petition for review because it challenges the BIA's

decision to reject a motion to reopen that is based on ineffective

assistance of counsel that was allegedly rendered only after the

BIA's earlier proceedings had come to an end.   The government goes

on to contend that, even if we do have jurisdiction to review the

BIA's ruling rejecting that ground for granting the motion to

                               - 3 -
reopen, Franco-Ardon's petition for review must be denied for

either of the two reasons that the BIA gave for denying the motion.

            We proceed on the assumption that we may review the BIA's

decision to deny Franco-Ardon's motion to reopen on the merits as,

even on that assumption, the petition for review still must be

denied.    See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir. 2018).

We come to that conclusion even if we look past Franco-Ardon's

years-long delay in seeking the motion to reopen and focus,

instead, only on his challenge to the BIA's ruling concerning his

failure to show the "likelihood of success" that the BIA required

him to demonstrate with respect to his ineffective assistance of

counsel claim.

            Although the BIA was not entirely clear as to the basis

for its "likelihood of success" requirement, the parties appear to

agree     that   the   BIA   was   imposing,   in   effect,   a   prejudice

requirement, with respect to Franco-Ardon's ineffective assistance

of counsel claim, such that in the absence of him demonstrating

sufficient prejudice, his motion to reopen could be properly

denied.     Franco-Ardon contends that the BIA erred in concluding

that his ineffective assistance of counsel claim could not support

his motion to reopen due to his failure to show prejudice on the

basis of two out-of-circuit precedents -- Dearinger v. Reno, 232

F.3d 1042 (9th Cir. 2000) and Gjondrekaj v. Mukasey, 269 Fed.

App'x. 106 (2nd Cir. 2008).         But neither precedent supports his

                                    - 4 -
contention.

             Gjonderkaj holds that the BIA has the authority to grant

a motion to reopen based on an alien's allegation that he received

ineffective assistance of counsel that resulted in the waiver of

the alien's right to petition for review of the BIA's ruling

affirming an order of removal to the Court of Appeals.           269 Fed.

App'x. at 108.      But, Gjonderkaj did not address -- as it had no

occasion to do so -- whether the BIA may require the alien who

makes such a motion to show that, absent the waiver, the petition

for review was likely to succeed.       Thus, Gjondrekaj, which is not

controlling in any event, provides no support for Franco-Ardon's

contention that the BIA erred in denying his motion to reopen

insofar as it did so because he failed to make that showing of

prejudice here.

             Nor does Dearinger help Franco-Ardon establish that the

BIA erred in that regard.       In Dearinger, the Ninth Circuit drew an

analogy to Sixth Amendment precedents that govern ineffective

assistance of counsel claims in criminal proceedings and held that

"prejudice     is   presumed"   when   an   alien   receives   ineffective

assistance of counsel that results in the alien's waiver of the

right to seek a timely federal court challenge to a BIA ruling




                                   - 5 -
affirming an order of deportation.1   Dearinger, 232 F.3d at 1045.

But, after Dearinger, we rejected a petition for review of the

BIA's affirmance of the denial of a motion to reopen, in which the

motion had been based on the alleged ineffective assistance of the

alien's counsel in waiving an appeal to the BIA.   See Hernandez v.

Reno, 238 F.3d 50, 57 (1st Cir. 2001).      And, in doing so, we

declined "to extend[] the prejudice per se notion from criminal

convictions to review of waiver denials in deportations," while

expressly noting our disagreement on that score with the result in

Dearinger.   Id.   Thus, we cannot accept Franco-Ardon's request

that we now adopt Dearinger's holding that prejudice must be

presumed and find that the BIA erred insofar as it ruled otherwise.

Accord Bin Wang v. Att'y Gen. of U.S., 363 Fed. App'x 888, 890-91

(3d Cir. 2010) (rejecting a petitioner's argument that he received

ineffective assistance of counsel when his counsel failed to

petition for appellate review because the petitioner failed to

show a "reasonable likelihood that the result would have been

different" but for counsel's errors); Wen Fang Shi v. Holder, 349



     1 Although the Court in Dearinger presumed prejudice from the
waiver caused by the ineffective assistance of counsel, it went on
to note that the petitioner also needed to establish "plausible
grounds for relief," 232 F.3d at 1046, which it found to have been
satisfied there without specifying the showing that an alien must
make to satisfy that standard.      The Ninth Circuit has since
explained    that    Dearinger    "implicitly"    established    a
"rebuttable . . . presumption of prejudice."      Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003).

                              - 6 -
Fed. App'x 569, 570 (2d Cir. 2009) (same).

              Finally, Franco-Ardon fails to identify anything in the

record that could suffice to compel the conclusion that he has

shown   the    requisite   prejudice   from   the   alleged   ineffective

assistance of counsel on which he bases his motion to reopen, such

as by demonstrating a likelihood of success with respect to his

original petition for review had it not been waived.            Instead,

Franco-Ardon simply asserts -- in a conclusory manner -- that he

had meritorious issues to raise in that earlier petition.            See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (treating

arguments not developed on appeal as waived).

                                  III.

              The petition for review is denied.




                                  - 7 -
