                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 10, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-60574
                          Summary Calendar


MANUEL BERMUDES-CARDENAS, also known as
Manuel Cardenas-Bermudez,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A35 472 968
                        --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Manuel Bermudes-Cardenas has petitioned for review of a

final order of the Board of Immigration Appeals (BIA) denying his

second motion to reopen his removal proceeding.    Bermudes-

Cardenas conceded his removability under 8 U.S.C

§ 1227(a)(2)(A)(iii) based on his 1991 Texas conviction of

indecency with a child.   The immigration judge (IJ) ordered

Bermudes-Cardenas removed after finding that he had waived the




     *
       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this opinion should not be published and is not precedent except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.
                             No. 04-60574
                                  -2-

right to file his applications for adjustment of status and

waiver of inadmissibility.

     After unsuccessfully appealing to the BIA , Bermudes-

Cardenas filed a motion to reopen his removal proceedings.    The

BIA concluded that the motion was untimely under 8 C.F.R.

§ 1003.2(c)(2) and the exception provided in 8 C.F.R.

§ 1003.2(c)(3) did not apply because Bermudes-Cardenas’s removal

was not ordered in absentia.    Accordingly, the BIA denied

Bermudes-Cardenas’s motion to reopen.

     Bermudes-Cardenas retained new counsel and filed a second

motion to reopen his removal proceedings.    He argued that the

limitations period and the numerical limitation of 8 C.F.R.

§ 1003.2(c)(2) should not apply in his case, or should be

equitably tolled, because his first motion to reopen was

allegedly filed without his authorization, and his former counsel

rendered ineffective assistance.    The BIA ruled that Bermudes-

Cardenas’s second motion to reopen was both untimely and

numerically barred.   Alternatively, the BIA held that, even if it

would consider his motion, Bermudes-Cardenas had not shown that

his first counsel was responsible for causing his applications to

be deemed abandoned, as Bermudes-Cardenas was present when the IJ

set the deadline for filing his applications.

     Bermudes-Cardenas now argues that the BIA’s application of

the procedural requirements of 8 C.F.R. § 1003.2(c)(2) was an

abuse of discretion because his first motion was filed without
                            No. 04-60574
                                 -3-

his authorization.    He argues that the limitations period should

have been equitably tolled due to the ineffective assistance

rendered by his first counsel.

     We have jurisdiction to hear the legal and constitutional

issues raised in Bermudes-Cardenas’s petition.     8 U.S.C.

§ 1252(a)(2)(D).   The denial of a motion to reopen is reviewed

under a “highly deferential abuse of discretion standard.”

Rodriguez v. Ashcroft, 253 F.3d 797, 799 (5th Cir. 2001).

     Under 8 C.F.R. § 1003.2(c)(2), subject to the exceptions in

8 C.F.R. § 1003.2(c)(3), a party “may only file one motion to

reopen,” which “must be filed no later than 90 days after the

date on which the final administrative decision was rendered in

the proceeding sought to be reopened.”     The exceptions do not

apply here because Bermudes-Cardenas’s removal was not ordered

in absentia.   See 8 C.F.R. § 1003.2(c)(2); 8 C.F.R.

§ 1003.23(b)(4)(ii); see also In re R-R-, 20 I. & N. Dec. 547,

549 (BIA 1992).    Therefore, the BIA did not abuse its discretion

by denying Bermudes-Cardenas’s second motion to reopen on

procedural grounds.

     Bermudes-Cardenas argues, however, that like the limitations

period which some courts have determined may be equitably

tolled,2 the numerical limitation may be equitably surmounted

when an alien pleads ineffective assistance of counsel.


     2
          E.g., Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.
          2005); Socop-Gonzalez v. INS, 272 F.3d 1176, 1181-83,
          1193-94 (9th Cir. 2001).
                             No. 04-60574
                                  -4-

Assuming, without deciding, that the numerical bar can be

surmounted for claims of ineffective assistance of counsel,

Bermudes-Cardenas still cannot prevail.     Bermudes-Cardenas has

not complied with the requirements for reopening proceedings

based on a claim of ineffective assistance of counsel, as set out

in In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1998).     He has

also not demonstrated prejudice.     See id.; De Zavala v. Ashcroft,

385 F.3d 879, 883 (5th Cir. 2004).    Because Bermudes-Cardenas has

not demonstrated that the BIA abused its discretion in denying

his second motion to reopen his removal proceedings, his petition

is denied.

     The petition for review also requests costs and attorney’s

fees pursuant to the Equal Access to Justice Act (EAJA).     See 28

U.S.C. § 2412.   An application for attorney’s fees under the EAJA

must be accompanied by proof that the applicant has prevailed.

See 5TH CIR. R. 47.8.2(a).   Because we deny the petition for

review, Bermudes-Cardenas does not qualify for an award of

attorney’s fees.

     PETITION FOR REVIEW DENIED; REQUEST FOR COSTS AND FEES

DENIED.
