                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 04-15037
                         Non-Argument Calendar                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               July 20, 2005
                        Agency No. A96-437-581               THOMAS K. KAHN
                                                                 CLERK
LO HARDY PRAWIRA,
                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,
                                                                  Respondent.


                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________
                               (July 20, 2005)



Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
       Lo Hardy Prawira, a native of Indonesia, petitions this Court for review of

the Board of Immigration Appeals (“BIA”) order affirming without opinion an

Immigration Judge’s denial of his motion to reopen his removal proceedings. He

argues that his due process rights were violated because he received ineffective

assistance of counsel. For the reasons stated more fully below, we deny the

petition.

       Prawira entered the United States on or about July 3, 2001, as a non-

immigrant visitor with authorization to remain in the United States no later than

January 2, 2002, and was served with a notice to appear on April 15, 2003,

charging Prawira with removability for remaining in the United States for a longer

time than permitted, INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Prawira then

filed an application for asylum and withholding of removal on the basis of his race

and religion, signed on August 5, 2003. When asked to explain the circumstances

of his fear, harm, or mistreatment, Prawira typed “please see attachment for

details,” and indicated that he feared that he would “be persecuted and tortured due

to my ethnicity background and religious belief if I am returned to Indonesia.” The

attachment was nothing more than a blank page.

       The record does not contain any transcripts or excerpts of a hearing before

an IJ, but does contain the order of an IJ dated March 3, 2004. The order indicates

that Prawira withdrew his application for asylum and withholding of removal and
                                          2
instead, requested voluntary departure, which was granted. On March 31, 2004,

Prawira filed, through counsel, a motion to reopen his proceedings, stating that his

previous attorney had informed him that he had no other choice but to apply for

voluntary departure. Prawira stated that he was scared and confused and continued

to be afraid of returning to Indonesia because of his Chinese ethnicity and

Christian religious beliefs. Attached to the motion to reopen were Prawira’s birth

certificate, a change of name document, Prawira’s mother’s birth certificate, and

Prawira’s baptism certificate.

      The IJ issued a written decision indicating that Prawira had attended a

hearing on July 22, 2003, at which time he admitted the allegations in his notice to

appear and conceded removability. The IJ’s decision also confirmed that, on

March 3, 2004, Prawira had appeared and, with the assistance of an interpreter,

withdrew his application for asylum and withholding of removal and was granted

relief in the form of voluntary departure. After noting that “[l]itigants are

generally bound by the conduct of their attorneys absent egregious circumstances

that rendered the hearing unfair,” the IJ denied the motion to reopen. The IJ found

that (1) Prawira failed to meet the procedural requirements necessary for prevailing

on an ineffective assistance of counsel claim; (2) before accepting Prawira’s

withdrawal of his application for asylum, the IJ had recessed proceedings to permit

Prawira to discuss with his counsel whether or not he wished to proceed and, after
                                           3
questioning Prawira to ensure he was acting knowingly, intelligently, and

voluntarily, further informed Prawira that if he withdrew his application, it would

be with prejudice; and (3) based on the foregoing, Prawira had a full opportunity to

pursue his application and Prawira had failed to provide the IJ with a basis for

reopening the proceedings.

      Prawira filed a notice of appeal with the BIA, arguing that the IJ’s decision

should be vacated because the IJ failed to take into consideration the totality of the

circumstances surrounding Prawira’s past persecution and well-founded fear of

return to Indonesia because of his ethnicity and religious beliefs. He also argued

that his counsel during the removal proceedings gave him bad advice and,

therefore, his counsel’s assistance was ineffective and the functional equivalent of

not being represented at all. Prawira’s brief to the BIA raised several arguments,

including that (1) the one-year time bar for filing an asylum application should not

apply because he received ineffective assistance of counsel; (2) the evidence

showed that he had been persecuted by Indonesian natives because of his ethnicity

and religion and had a well-founded fear of persecution if returned to Indonesia;

and (3) his Fifth Amendment Due Process rights had been violated because his

counsel’s advice at his removal proceedings “was grossly wrong” and was the

equivalent of having no representation. On September 8, 2004, the BIA affirmed

the decision of the IJ without opinion in a per curiam decision.
                                           4
       On appeal, Prawira argues that his due process rights were violated because,

during his removal proceedings, his counsel erroneously advised him that the only

relief for which Prawira was eligible was voluntary departure and, despite having a

brief recess to talk to his counsel, Prawira did not have time to think through his

decision or to seek other advice. Because he had a strong case for withholding of

removal, he argues that the ineffective assistance of counsel was sufficient to

reopen his proceedings.

       Because Prawira’s removal proceedings commenced after April 1, 1997, the

effective date of IIRIRA, this case is governed by the permanent provisions of the

INA, as amended by IIRIRA. Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d

1331, 1332 (11th Cir. 2003).1 When the BIA summarily affirmed the IJ’s decision

without an opinion, the IJ’s decision became the final order subject to review. See

Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003)

(citing 8 C.F.R. § 3.1(a)(7) (2002))



       1
         Pursuant to the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, enacted into law
on May 11, 2005, the commencement date of a petitioner’s removal proceedings appears to be
no longer important, as even “transitional rules” cases are now governed under the review
provisions of IIRIRA. The text of the law reads:
       A petition for review filed under former section 106(a) of the Immigration and
       Nationality Act (as in effect before its repeal by section 306(b) of the Illegal
       Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252
       note)) shall be treated as if it had been filed as a petition for review under section
       242 of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this
       section.
Pub. L. 109-13, 119 Stat. 231, Division B.
                                                    5
      We review the denial of a motion to reopen for an abuse of discretion. Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). Judicial review of a

denial of a motion to reopen in deportation proceedings is limited to determining

“whether there has been an exercise of administrative discretion and whether the

matter of exercise has been arbitrary or capricious.” Garcia-Mir v. Smith, 766 F.2d

1478, 1490 (11th Cir. 1985) (internal quotations and citation omitted). Motions to

reopen are disfavored, especially in a deportation proceeding, “where, as a general

matter, every delay works to the advantage of the deportable alien who wishes

merely to remain in the United States.” Immigration and Naturalization Serv. v.

Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992).

      Pursuant to the Fifth Amendment Due Process Clause, “[a]liens enjoy the

right to effective assistance of counsel in deportation proceedings.” Mejia

Rodriguez, 178 F.3d at 1146. “[T]o establish the ineffective assistance of counsel

in the context of a deportation proceeding, an alien must establish that his or her

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

fundamental fairness of the hearing such that the alien was unable to reasonably

present his or her case.” Dakane v. United States Attorney General, 399 F.3d 1269,

1273-74 (11th Cir. 2005) (internal quotations and citation omitted).

      The BIA has required that, when filing a motion to reopen based on a claim

of ineffective assistance of counsel, the alien must: (1) submit an affidavit attesting
                                           6
to the relevant facts; (2) inform former counsel of the allegations and allow an

opportunity to respond; and (3) if asserting that the prior counsel’s handling of the

case violated ethical or legal responsibilities, state whether a complaint has been

filed with the appropriate disciplinary authorities, and, if not, why not. Matter of

Lozada, 19 I&N Dec. 637, 639 (1988). We have held that the BIA does not abuse

its discretion by requiring aliens to meet the three procedural requirements of

Lozada. Gbaya v. United States Attorney Gen., 342 F.3d 1219, 1221-23 (11th Cir.

2003).

         Here, the IJ did not abuse its discretion by denying Prawira’s motion to

reopen his deportation proceedings. The IJ found that Prawira had failed to submit

any of the evidence required under Lozada, and as the record reflects, Prawira’s

motion did not contain an affidavit setting forth Prawira’s agreement with counsel

or the representations counsel did or did not make, did not demonstrate that

Prawira’s counsel had been notified and given a chance to respond, and did not

reflect whether or not a complaint had been filed with disciplinary authorities

regarding the legality or ethical nature of his counsel’s actions. Lozada, 19 I&N

Dec. at 639. Accordingly, the IJ did not abuse its discretion by denying Prawira’s

motion to reopen because he failed to comply with the procedural requirements set

forth by the BIA. Compare Dakane, 399 F.3d at 1274 (finding that, because it was

not disputed that the petitioner had substantially complied with the procedural
                                            7
requirements of Lozada, it was necessary to address whether the petitioner also had

to prove prejudice from his counsel’s deficient performance); see also Gbaya, 342

F.3d at 1222-23 (approving of the Lozada requirements and determining that the

petitioner had neither strictly nor substantially complied with those requirements

and, therefore, it was not an abuse of discretion to deny petitioner’s motion to

reopen).

      PETITION DENIED.




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