                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                No. 07-14289                        May 2, 2008
                            Non-Argument Calendar                THOMAS K. KAHN
                          ________________________                   CLERK


                            Agency No. A99-576-039

MAGDALA PIERRE,
a.k.a. Shanikah Jean,
a.k.a. Shenikah Jean,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

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

                                  (May 2, 2008)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

      Magdala Pierre, a native and citizen of Haiti, petitions this Court to review

the final order of the Board of Immigration Appeals (“BIA”) denying her motion to
reopen her asylum proceedings. In her petition for review, Pierre argues that the

BIA erred by affirming the decision of the immigration judge (“IJ”), who rejected

Pierre’s ineffective-assistance-of-counsel claim as a basis for reopening her

removal proceedings. Pierre also argues that the BIA erred by affirming the IJ’s

denial of a continuance while she sought adjustment of her immigration status.

After careful review, we deny the petition for review.1

       The relevant facts are straightforward. Pierre arrived in the United States on

May 22, 2006, when she attempted to enter this country by presenting a fraudulent

admission stamp and a counterfeit Haitian passport. On June 9, 2006, she was

charged with removability from the United States pursuant to Sections

212(a)(6)(C)(i) and (a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”),

8 U.S.C. §§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(I). On July 21, 2006, Pierre conceded

removability and was paroled into the United States for the purpose of pursuing

asylum. She did not file a timely asylum application. On January 11, 2007, the IJ

denied Pierre’s request for a continuance.             The IJ cited his earlier order, dated

September 7, 2006, warning Pierre that her request for asylum would be deemed


       1
            We review our subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Because Pierre presented her core issue on appeal --
the ineffective-assistance-of-counsel claim argument -- to both the IJ and the BIA, she has exhausted
her administrative remedies as to the claim, and we have jurisdiction over her petition for review.
See Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008) (where
petitioner consistently argued, before the IJ and the BIA, the core issue on appeal, petitioner
exhausted her claims and sufficient jurisdiction existed).
                                                 2
abandoned unless she filed it on or before January 11, 2007. The IJ subsequently

clarified that a continuance was not warranted pending an adjudication of Pierre’s

husband’s visa petition by the United States Citizenship and Immigration Services

(“USCIS”), because, as an arriving alien, Pierre was ineligible for an adjustment of

status based on her husband’s visa petition. The IJ also rejected Pierre’s argument

to reopen the proceedings, based on ineffective assistance of counsel, because she

failed to comply with the requirements for such a claim, as set forth in Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA affirmed the IJ’s decision.

This petition for review followed.

      We review the denial of a motion to reopen a removal order for abuse of

discretion. Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1316 (11th

Cir. 2006). When the BIA issues its own opinion, we review only the decision of

the BIA, except to the extent the BIA expressly adopts the IJ’s decision.

Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007). We

review the denial of a motion for continuance for an abuse of discretion.

Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214 (11th Cir. 2006).             “The

Immigration Judge may grant a motion for continuance for good cause shown.” 8

C.F.R. § 1003.29.

      In general, an alien may file one motion to reopen proceedings within 90

days of the date of entry of a final administrative order of removal and the motion
                                         3
to reopen needs to state the new facts that will be proven at the hearing and provide

all supporting affidavits or other evidence. See INA § 240(c)(7), 8 U.S.C.

§ 1229a(c)(7). An alien also can move to reopen her removal proceedings on the

basis of ineffective assistance of counsel, but the alien must establish that 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 her

case. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). The BIA

has adopted the following requirements for a motion to reopen based on ineffective

assistance of counsel:

      . . . (1) that the motion [to reopen] 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.


Matter of Lozada, 19 I. & N. Dec. 637, 637 (BIA 1988). In addition to these

requirements, a petition must show prejudice, which 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, 399 F.3d at 1274.
                                          4
      In her motion to reopen, Pierre argued that she received erroneous advice

from her attorney concerning the time for filing her asylum application. To the

motion to reopen, she attached an application for asylum and withholding of

removal. Pierre’s submission did not establish, or so much as suggest, that, but for

the allegedly mistaken advice from her attorney as to the time for filing an asylum

application, the outcome of her original asylum request would have been different.

That is to say, she did not demonstrate prejudice, within the meaning of Dakane.

Accordingly, the BIA did not abuse its discretion by affirming the denial of her

motion to reopen because the motion did not meet the requirements for

demonstrating ineffective assistance of counsel.

      We likewise are unpersuaded by Pierre’s second argument, that the IJ erred

by denying her request for a continuance while she sought adjustment of her

immigration status through her husband’s visa petition proceedings before the

USCIS. Pursuant to 8 C.F.R. § 1245.2, which governs the IJ’s jurisdiction over

adjustments of status,

      In the case of an arriving alien who is placed in removal proceedings,
      the immigration judge does not have jurisdiction to adjudicate any
      application for adjustment of status filed by the arriving alien unless:
      (A) [t]he alien properly filed the application for adjustment of status
      with USCIS while the arriving alien was in the United States; (B)
      [t]he alien departed from and returned to the United States pursuant to
      the terms of a grant of advance parole to pursue the previously filed
      application for adjustment of status; (C) [t]he application for
      adjustment of status was denied by USCIS; and (D) DHS placed the
                                         5
       arriving alien in removal proceedings either upon the arriving alien’s
       return to the United States pursuant to the grant of advance parole or
       after USCIS denied the application.

8 C.F.R. § 1245.2(a)(1)(ii).

       When she filed her motion for a continuance, Pierre was an “arriving alien . .

. placed in removal proceedings,” to which none of the exceptions enumerated in §

1245.2(a)(1)(ii) applied. Therefore, the IJ was without jurisdiction to address her

adjustment-of-status claim. Pursuant to Section 1245.2(a)(1)(ii), the authority to

adjudicate such a claim is vested exclusively in the USCIS in the case of arriving

aliens in removal proceedings. See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244,

1254 (11th Cir. 2008).2 Accordingly, the appropriate course of action for Pierre

was to file an application for adjustment of status with the USCIS and wait for this

application to be adjudicated, independent of her removal proceedings.                          The

pendency of Pierre’s husband’s visa application before the USCIS proceedings was

not a basis for continuing her removal proceedings because, due to §

1245.2(a)(1)(ii)’s jurisdictional bar, the immigration courts have no jurisdiction

over adjustment applications filed by aliens in Pierre’s position. Thus, even if her

       2
           Pierre’s case is distinguishable from Bull v. I.N.S., 790 F.2d 869, 871 (11th Cir. 1986),
in which we found an abuse of discretion based on the IJ’s denial of a continuance where the petition
was awaiting a determination on his wife’s I-130 petition. The petitioner in Bull arrived in the
United States on a student visa and overstayed his visa. He married a United States citizen prior to
his arrest by the I.N.S. and sought a continuance while his wife’s I-130 petition was pending.
Notably, unlike this instant case, Bull did not involve an arriving alien and thus a different set of
regulations controlled and, more importantly, the jurisdiction-stripping provisions of §
1245.2(a)(1)(ii) were inapplicable.
                                                  6
husband’s visa petition was approved by the USCIS, her adjustment-of-status

application could not be adjudicated in the immigration courts. Id. (holding that

where immigration court had no jurisdiction over arriving alien’s adjustment

application, continuance was not warranted because there was “no possibility that

[petitioner’s] adjustment application would be adjudicated during removal

proceedings”). Accordingly, the BIA did not err by affirming the IJ’s denial of a

continuance.

      PETITION DENIED.




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