     Case: 12-60448       Document: 00512250730         Page: 1     Date Filed: 05/22/2013




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

                                                                            FILED
                                                                           May 22, 2013
                                     No. 12-60448
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

EPHREM LISANUORK-FEREDE,

                                                  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. A099 531 471


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ephrem Lisanuork-Ferede, a native and citizen of Ethiopia, moves for a
petition for review of the order of the Board of Immigration Appeals (BIA)
denying his motion to reopen his claims for asylum, withholding of removal, and
Convention Against Torture relief based upon the ineffective assistance of his
prior counsel. He asserts that the BIA improperly required that he make a
conclusive, rather than prima facie, showing that he was prejudiced by his prior
counsel’s errors.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60448     Document: 00512250730      Page: 2    Date Filed: 05/22/2013

                                  No. 12-60448

      Motions to reopen deportation proceedings are not favored.            INS v.
Doherty, 502 U.S. 314, 323 (1992). This court reviews the BIA’s denial of a
motion to reopen “under a highly deferential abuse-of-discretion standard.”
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). That discretion will not be
disturbed unless it is arbitrary, capricious, racially invidious, or utterly without
evidentiary foundation. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006).
      An alien has no Sixth Amendment right to effective counsel during
removal proceedings. Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir.
2001). However, this court has assumed without deciding that an alien’s claim
of ineffective assistance may implicate due process concerns under the Fifth
Amendment. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). To
prevail on a claim of ineffective assistance of counsel, an alien in removal
proceedings must establish that his attorney performed deficiently to the extent
that he was prevented from pursuing his rights and that he was substantially
prejudiced as a result of the ineffective representation. Mai, 473 F.3d at 165;
Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
      As the BIA permissibly based its denial upon Lisanuork-Ferede’s failure
to provide new, material evidence to support his claims, his assertion that the
BIA erred by not basing its denial on his failure to make a prima facie case lacks
merit. See INS v. Abudu, 485 U.S. 94, 104-05 (1988); 8 C.F.R. § 1003.2(c)(1).
Because Lisanuork-Ferede does not explain with any particularity how the BIA
erred in finding that neither his affidavit nor any of the other newly submitted
evidence was sufficiently material to warrant reopening his claims, he fails to
show that the BIA abused its discretion by denying his motion to reopen. See
Zhao, 404 F.3d at 303. Accordingly, his petition for review is DENIED.




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