                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4628
                                      ___________

                                 HACER CAKMAKCI,
                                             Petitioner
                                        v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                     Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A097 521 211)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 14, 2010
          BEFORE: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges

                             (Opinion Filed: April 15, 2010)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM.

             Hacer Cakmakci has filed a petition for review of an order of the Board of

Immigration Appeals (“BIA” or “Board”) denying her motion to reopen her removal

proceedings. For the reasons that follow, we will deny the petition for review.

                                            1
              Cakmakci is a native and citizen of Turkey who arrived in the United States

in April 2005 without valid travel documents. She was charged with removability under

8 U.S.C. § 1182(a)(7)(A)(i)(I). She appeared before the Immigration Judge (“IJ”) without

counsel and received repeated continuances of her hearing date for the purpose of

obtaining attorney representation. The IJ instructed Cakmakci regarding her right to

present evidence and question any witnesses, and granted further continuances. The IJ

held an evidentiary hearing on April 19, 2006 and heard closing arguments on May 9,

2006. Cakmakci proceeded pro se and presented her own testimony in support of her

claims.

              The IJ found her to be not credible, denied all relief, and ordered

Cakmakci’s removal. Cakmakci appealed through counsel, arguing that the IJ had failed

to consider whether Cakmakci was competent to face removal proceedings and to

participate in the merits hearing, and that the IJ violated her due process rights because

Cakmakci lacked sufficient mental capacity to participate. On May 12, 2008, the BIA

dismissed the appeal, affirming and adopting the IJ’s decision. The BIA noted that no

appellate brief was filed, and no documentary evidence was submitted to support the new

claim of mental incompetence. The BIA also concurred with the IJ’s determination that,

even if credible, Cakmakci failed to meet her burden of proof for her claims.

              On June 11, 2008, Cakmakci filed a pro se motion to reconsider and reopen,



                                              2
arguing that counsel on appeal was ineffective in failing to file a brief and submit

documentation, that she had difficulty obtaining counsel, that she suffered physical and

emotional injuries from a car accident, and that she was unable to present her story at the

hearing due to the tremendous pressure. In support of the motion, Cakmakci submitted

documents, including medical and psychiatric records, and letters indicating that she was

pursuing official grievances against former counsel. On October 31, 2008, the BIA

construed the motion as a motion to reopen and denied it. The BIA concluded that, aside

from the issue of whether Cakmakci met the procedural requirements of Matter of

Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), regarding her ineffective

assistance claim, Cakmakci had presented nothing to establish her prima facie eligibility

for asylum, withholding of removal, or CAT relief if her proceedings were reopened.

This petition for review followed.

              We have jurisdiction to review the BIA’s denial of Cakmakci’s motion to

reopen under 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of

discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Thus, to succeed

on her petition for review, Cakmakci must show that the Board’s decision was somehow

arbitrary, irrational, or contrary to law. See id.

              In a motion to reopen removal proceedings, the alien must proffer “new

facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall

be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). A



                                               3
motion to reopen proceedings “shall not be granted” unless it appears to the Board that

the evidence offered “is material and was not available and could not have been

discovered or presented at the former hearing.” Id. The Board may deny a motion to

reopen proceedings on any of these grounds: (1) it may hold that the alien has failed to

establish a prima facie case for the underlying substantive relief; (2) it may conclude that

the alien has failed to introduce previously unavailable and material evidence; and (3) if

the underlying substantive relief is discretionary, it may decline to consider the first two

threshold requirements and, instead, determine that the alien would not be entitled to the

requested discretionary grant of relief. Immigration & Naturalization Serv. v. Doherty,

502 U.S. 314, 323 (1992) (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S.

94, 104-05 (1988)). “As a general rule, motions to reopen are granted only under

compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004).

              Cakmakci argues that the BIA and the IJ erred in failing to address whether

she was prejudiced by proceeding pro se at the hearing, given that she was mentally and

physically ill at the time of the hearing. However, Cakmakci did not file a timely petition

for review of the BIA’s May 12, 2008 decision, and we lack jurisdiction to review the

BIA’s disposition of her due process claim and claim of incompetence at the hearing. See

8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405

(1995). As for Cakmakci’s arguments concerning counsel on appeal, we conclude that

the BIA did not abuse its discretion in denying the motion to reopen, even assuming that



                                              4
counsel was ineffective, because Cakmakci offered no evidence in her motion showing

prima facie eligibility for relief if her case were reopened. Although she stated in her

motion that she was unable to relate her story fully during the hearing before the IJ, and

that “if given another opportunity [she] will be able to present a better case,” Cakmakci

provided no additional information as to what her new supporting testimony or evidence

would be.1 The Board’s reasons for denying the motion to reopen were not arbitrary,

capricious or contrary to law.

              We will deny the petition for review.




              1
               As noted by the BIA in its October 31, 2008 decision, the BIA held in its
May 12, 2008 decision that, even assuming that Cakmakci’s testimony was credible, she
did not meet her burden of showing past persecution or a well-founded fear of future
persecution in Turkey; her claim was not based on a protected ground.

                                             5
