                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                            No. 04-16632                     October 14, 2005
                        Non-Argument Calendar               THOMAS K. KAHN
                      ________________________                  CLERK


               BIA Agency Nos. A78-580-172, A78-580-173

ROBERTO SALES LUIS,
ROBERTO SALES PEREZ,

                                                                  Petitioners,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.


                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                      _________________________
                            (October 14, 2005)


Before ANDERSON, BLACK and WILSON, Circuit Judges.

PER CURIAM:
      Roberto Sales-Luis and his minor child, Roberto Sales-Perez, petition for

review of the Board of Immigration Appeals’ (BIA’s) decision, dismissing their

appeal of the Immigration Judge’s (IJ’s) removal order. Petitioners contend the

BIA (1) abused its discretion by dismissing Petitioners’ appeal of the IJ’s denial of

their motion for a continuance of their removal proceedings, (2) erred by

dismissing Petitioners’ ineffective assistance of counsel claim, and (3) erred by

dismissing Petitioners’ claim the IJ erroneously failed to consider their request for

voluntary departure as one made prior to the conclusion of the proceedings. We

deny their petition.

                                 I. BACKGROUND

      Sales-Luis and Sales-Perez, both Guatemalan citizens, entered the United

States at different times between December 1999 and January 2000. In October

2000, Sales-Luis and Sales-Perez were issued Notices to Appear (NA), alleging

they were subject to removal because they had not been admitted or paroled into

the United States after inspection by an Immigration Officer. At a preliminary

hearing on December 27, 2000, an IJ–via an official interpreter from the

immigration court–informed Sales-Luis he had a right to an attorney. The IJ

indicated he was resetting the case in order to give Sales-Luis several months in

which to find legal assistance. At the next hearing, on May 2, 2001, Sales-Luis

again appeared without an attorney, and the IJ stated Sales-Luis would have to
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represent himself and his son. Sales-Luis admitted the allegations against him and

his son, and conceded removability. The IJ set a hearing date and reminded Sales-

Luis he was “still welcome to get an attorney.”

      On February 14, 2002, before a different IJ, Petitioners appeared with their

newly acquired attorney, Jack Phillips. Phillips filed a motion for continuance,

indicating Petitioners had only recently retained him and requesting additional

preparation time, which was granted. The next hearing took place on March 28,

2002, at which time Phillips filed another motion for continuance because he had

not received documents from a Freedom of Information Act (FOIA) request to the

Immigration and Naturalization Service (INS). One day prior to the next hearing,

which took place on April 11, 2003, Phillips filed another motion for a

continuance, which the court denied. Due to a scheduling error on the

Government’s part, however, the Government’s trial attorney was not available for

the hearing; accordingly, the IJ reset the hearing. Phillips stated he “had plans to

be out of the country during that time” but would try to find “substitute counsel.”

      At the next hearing, on June 24, 2003, Sales-Luis appeared without Phillips.

Earlier that morning, the court had received an emergency motion from Phillips,

asking to continue the hearing because he suffered from chronic sleep disorder,

anxiety, and depression. The IJ noted the letter from Phillips’ doctor submitted in

support of his motion was dated June 11, 2003, and, consequently, denied Phillips’
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motion as untimely. The IJ further stated that, according to Phillips’ motion,

Phillips had suffered from his medical condition since childhood, but failed to

bring this information to the court’s attention in the “close to a year and a half” he

represented Petitioners. After the IJ informed Sales-Luis that Phillips had filed a

motion indicating he could not represent Sales-Luis due to his health, Sales-Luis

stated it was “fine because that’s what [Phillips had] been using in order to cancel

all his appointments with [Sales-Luis] and then saying that he would see [Sales-

Luis] in two or three months down the road.” Sales-Luis then proceeded to testify

about the grounds underlying his application for political asylum.

      At the completion of Sales-Luis’s testimony, the IJ reviewed the record and

determined Sales-Luis was not eligible for voluntary departure, as he lacked the

necessary physical presence in the United States. The IJ then issued an oral

decision, denying Sales-Luis’s application for asylum, 8 U.S.C. § 1158, and

withholding of removal under the Immigration and Nationality Act, 8 U.S.C.

§ 1231(b)(3)(A), and the United Nations Convention Against Torture and Other

Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R.

§ 208.16(c).

      Sales-Luis appealed the IJ’s decision to the BIA, which dismissed

Petitioners’ appeal, finding the Petitioners failed to “put forth any argument on

appeal that either the [IJ’s] or [Phillips’] conduct caused them actual prejudice and
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harm which would have materially affected the outcome of their requests for

relief.”

                                  II. DISCUSSION

A.     Motion for a Continuance

       Petitioners argue the IJ violated their due process rights by denying their

motion for a continuance in order for them to obtain new counsel when their

attorney failed to appear for their June 24, 2003, removal hearing. According to

Petitioners, “they did not have prior notice that their counsel was not going to

appear, [and] it was likewise impossible for them to have secured other counsel to

represent them that day.” Citing Montilla v. INS, 926 F.2d 162 (2d Cir. 1991),

Petitioners contend that, because the INS failed to adhere to its own regulations

regarding the right to counsel in a deportation hearing, they are not required to

make a showing of prejudice.

       We review an IJ’s denial of a motion for a continuance for an abuse of

discretion. See Olvera v. INS, 504 F.2d 1372, 1374 (5th Cir. 1974); see also Al

Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004). There is no Sixth

Amendment right to counsel in deportation proceedings, and aliens only enjoy the

right to effective assistance of counsel pursuant to the Fifth Amendment Due

Process Clause. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999).

Due process, however, does not automatically mean a right to counsel.
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Prichard-Ciriza v. INS, 978 F.2d 219, 222 (5th Cir. 1992). To prevail on a due

process challenge to a removal proceeding, the alien must demonstrate the alleged

misconduct resulted in “substantial prejudice.” Mullen-Cofee v. INS, 976 F.2d

1375, 1380 (11th Cir. 1992).

      The BIA did not abuse its discretion by dismissing Petitioners’ appeal of the

IJ’s denial of their motion for a continuance. Contrary to Petitioners’ contentions,

the INS did not fail to adhere to its own regulations, as Petitioners were given

notice of their right to counsel and afforded the privilege of being represented by

that counsel. See 8 U.S.C. §§ 1229(a)(1)(E), (b)(4)(A); 8 C.F.R. §§ 1003.16(b),

1240.10(a)(1). The IJ (1) previously explained to Sales-Luis his right to counsel,

(2) twice continued the hearing in order for Sales-Luis to retain counsel,

(3) informed Sales-Luis that, if he appeared without counsel, he would have to “go

forward and speak for [him]self,” and (4) again continued the hearing in order for

Sales-Luis’s counsel adequately to prepare. Accordingly, Petitioners’ contention

they need not show substantial prejudice fails. Because Petitioners fail to allege

how they were prejudiced by the denial of their motion for a continuance, we deny

the petition as to this motion.

B.    Ineffective Assistance of Counsel Claim

      Petitioners next argue the BIA erred by denying their ineffective assistance

of counsel claim, as “[t]here can be no greater example of ineffective assistance of
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counsel [than] the present situation in which the Petitioners’ former counsel

abandoned them on the day of their individual hearing.” Moreover, Petitioners

argue, the IJ erred by (1) denying Phillips’ emergency motion for a continuance,

(2) denying Sales-Luis’s oral motion for a continuance in order for him to secure

new counsel, (3) not allowing Sales-Luis to confer with an attorney regarding

voluntary departure, and (4) not allowing Petitioners “an opportunity to present

their case,” including allowing Sales-Luis to “make a statement on his or his son’s

behalf, call other witnesses, or introduce evidence.”

      We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,

352 F.3d 1338, 1341 (11th Cir. 2003). “[T]o establish the ineffective assistance of

counsel in the context of a deportation hearing, an alien must establish his or her

counsel’s performance was deficient to the point that it impinged the ‘fundamental

fairness’ of the hearing.” Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1221 (11th Cir.

2003) (internal quotations and citation omitted). “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.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).

      Petitioners have failed to demonstrate what prejudice they suffered on

account of Phillips’ ineffective assistance of counsel. Aside from speculating as to

how a competent attorney might have conducted himself at the hearing, Petitioners
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fail to set forth how their proceedings would have been different had their counsel

been present, including what, if any, additional (1) evidence would have been

presented, (2) testimony would have been offered, and (3) witnesses would have

testified. Moreover, Petitioners fail to explain how any such evidence would have

changed the outcome of the proceedings. Consequently, Petitioners failed to

establish their proceedings would have differed but for their counsel’s deficient

performance. Their ineffective assistance of counsel claim therefore fails, and we

deny their petition as to this issue.

C.     Request for Voluntary Departure

       Finally, Petitioners argue the IJ (1) ignored their request for voluntary

departure, and (2) failed to explain, and even confused, the distinction between

requesting voluntary departure “during proceedings as opposed to requesting

[v]oluntary [d]eparture at the conclusion of proceedings.” Consequently,

Petitioners argue, they were unable to make an “informed decision” regarding

whether to pursue voluntary departure, especially since they were without counsel.

       The Immigration and Naturalization Act distinguishes between an IJ

granting voluntary departure “[p]rior to completion of [the] removal proceedings,”

8 C.F.R. § 1240.26(b), and “[a]t the conclusion of the removal proceedings,” 8

C.F.R. § 1240.26(c). To obtain a grant of voluntary departure prior to the

conclusion of the proceedings, an alien must “[m]ake[] such request prior to or at
                                           8
the master calendar hearing at which the case is initially calendared for a merits

hearing.” 8 C.F.R. § 1240.26(b)(1)(i)(A). Alternatively, the Government’s

counsel may stipulate to a grant of voluntary departure “at any time prior to the

completion of removal proceedings.” 8 C.F.R. § 1240.26(b)(2). Granting of

voluntary departure at the conclusion of the proceedings, on the other hand,

requires the alien to have been “physically present in the United States for a period

of at least one year preceding the date the Notice to Appear was served.” 8 C.F.R.

§ 1240.26(c)(1)(i).

      According to 8 U.S.C. § 1229c(f), we lack jurisdiction “over an appeal from

denial of a request for an order of voluntary departure under subsection (b) of this

section.” The “subsection (b)” to which § 1229c(f) refers pertains to requests for

voluntary departure made “[a]t conclusion of proceedings.” See 8 U.S.C.

§ 1229c(b). Here, Petitioners do not ask us to review the denial of a request for

voluntary departure made at the conclusion of the proceedings. Rather,

Petitioners’ assert the IJ erroneously thwarted their desire to obtain voluntary

departure prior to completion of the removal proceedings. Therefore, we have

jurisdiction over Petitioners’ claim.

      Regardless, Petitioners’ argument fails. First, Petitioners’ failure to request

voluntary departure at the master calendar hearing on May 2, 2001, renders

untimely their claim for voluntary departure under 8 C.F.R. § 1240.26(b)(1)(i)(A).
                                           9
Second, Petitioners’ contention they were “uninformed” and “confused” regarding

voluntary departure lacks merit, because they chose to appear at the master

calendar hearing without counsel after being informed of their right to counsel at

their initial hearing and receiving five months to retain counsel. Furthermore,

Petitioners cite no authority requiring an IJ to inquire sua sponte whether the

government would be willing to stipulate to voluntary departure under

§ 1240.26(b)(2). The IJ did not err by refusing to consider the petitioners’ request

for voluntary departure as one made prior to the completion of the removal

proceedings, and we deny their petition as to this issue.

                                III. CONCLUSION

      Petitioners (1) failed to allege how they were prejudiced by the denial of

their motion for a continuance, (2) failed to establish their proceedings would have

differed but for their counsel’s deficient performance, and (3) failed to request

voluntary departure at the master calendar hearing. Accordingly, all three of their

claims lack merit and we deny their petition.

      PETITION DENIED.




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