                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                      MAY 10, 2007
                               No. 06-15336        THOMAS K. KAHN
                                                        CLERK
                           Non-Argument Calendar
                         ________________________

                             BIA No. A79-399-749

JOSEPH ALEXANDER PITAM,
a.k.a. Ramiese Hochoy Mahadeo,

                                                        Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                        Respondent.


                         ________________________

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

                                 (May 10, 2007)

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

     In this case, an Immigration Judge (“IJ”), on August 10, 2001, denied
Petitioner’s application for asylum, withholding of removal under the Immigration

and Nationality Act, and the relief afforded by the U.N. Convention Against

Torture, and ordered Petitioner’s removal.1 The Board of Immigration Appeals

(“BIA”) affirmed the IJ’s decision without opinion on June 10, 2003.

       On August 14, 2006, Petitioner moved the BIA to reopen his removal

proceedings, claiming that the attorney who had represented him before the IJ had

rendered ineffective assistance of counsel, in that she failed to notify him of the

BIA’s decision and therefore deprived him of his opportunity to prosecute a

petition for review in this court. Petitioner also claimed that the attorney was

aware of these facts, but had not responded to him.2

       The BIA denied the motion to reopen on September 8, 2006. It rejected the

ineffective assistance claim because Petitioner failed to comply with the procedural

requirements for presenting such a claim as spelled out in Matter of Lozada, 19 I.

& N. Dec. 637 (BIA 1988), aff’d 857 F.2d 10 (1st Cir. 1988). Specifically,

Petitioner failed to accompany his motion with a copy of his representation

agreement with his attorney, failed adequately to notify the attorney of her alleged


       1
          Petitioner is a native and citizen of Guyana, who admitted at his removal hearing
before the IJ that he attempted to enter the United States with a fraudulent passport on April 22,
2001, and thus was subject to removal as alleged in the Government’s Notice to Appear.
       2
          Petitioner’s motion to reopen also stated that he was now married to a United States
citizen, was the father of a child born here, and was the beneficiary of an approved petition for
an immediate relative visa.
                                                  2
deficiencies, and failed to provide adequate proof that he had filed a bar complaint

against her. Petitioner now seeks review of the denial of his motion to reopen.

      In a civil removal proceeding, an alien is not entitled to the Sixth

Amendment right to counsel; nonetheless, he is entitled under the Fifth

Amendment Due Process Clause to a fundamentally fair hearing and to effective

assistance of counsel where, as here, counsel is providing representation. Dakane

v. U.S. Att’y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005). In Matter of Lozada,

the BIA held that a motion to reopen based on 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.

19 I.&N. Dec. 637, 639 (BIA 1988). “[I]n addition to substantial, if not exact

compliance” with these requirements, the alien must also show prejudice. Dakane,

399 F.3d at 1274. “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.” Id.

                                           3
      In this case, Petitioner failed to satisfy Lozada’s second requirement; he did

not inform his attorney of the allegations he was leveling against her and give her

an opportunity to respond. We therefore deny Petitioner’s challenge to the BIA’s

decision denying the motion to reopen.

       In his brief, Petitioner presents a claim based on 8 C.F.R. §§ 245.1(c)(8) and

1245.1(c)(8). These regulations address the manner in which an alien may seek

adjustment of his status; they specifically preclude adjustment for an alien who is

in deportation proceedings. See 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8); see also

Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1318-22 (11th Cir. 2006) (holding that

8 C.F.R. § 1245.1(c)(8) is invalid). Petitioner did not present this claim to the BIA.

In failing to do so, Petitioner failed to exhaust his administrative remedies. For

this reason, we do not consider the claim here.

      PETITION DISMISSED, in part, and DENIED, in part.




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