                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    November 1, 2006
                              FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                       Clerk of Court

    K W A BENA ESSU M A N ,

                Petitioner,

    v.                                            Nos. 05-9573 & 05-9587
                                                    (No. A77-779-412)
    ALBERTO R. GONZA LES,                          (Petitions for Review)
    Attorney General,

                Respondent.



                              OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




         Petitioner Kwabena Essuman is a native and citizen of Ghana who

overstayed his non-immigrant visitor visa. He was ordered removed from the

United States in July 2003, an order affirmed by the Bureau of Immigration

Appeals (BIA). W ith a new attorney, petitioner filed a motion with the B IA




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
requesting that his case be reopened because of ineffective assistance of previous

counsel. The BIA denied the motion to reopen, after which petitioner filed his

petition for review with this court. That petition is No. 05-9573.

      W hile the motion to reopen was pending before the BIA, petitioner filed

a petition for a writ of habeas corpus in the district court in connection with

the original removal order. That petition was transferred to this court under

the provisions of the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(c),

110 Stat. 231, 310, and our No. 05-9587 was opened. The two cases w ere

consolidated for appeal.

                                    Background

      Petitioner entered the United States in 1992 and stayed beyond the time

authorized by his visitor’s visa. Sometime after that, he learned that his father in

Ghana was dying. W ishing to visit his father but still be able to return to the

United States, petitioner gave $5000 and his passport to two individuals in

New York who assured him that they could help him with his immigration

problem . He also provided his newly found contacts w ith fingerprints and his

medical record.

      Petitioner testified that, unbeknown to him, the people he enlisted to help

him had filed an immediate-relative visa petition based on an alleged marriage to

a United States citizen and supported the petition with a false birth certificate and

a false marriage certificate (the 1996 petition). Although petitioner’s signature

                                          -2-
apparently appears on some of the documents filed on his behalf in 1996, none of

the application documents from the 1996 petition appear in the record. 1

Petitioner, however, admits that he signed some documents, Admin. R. at 192, but

insists that he knew nothing of the attempted fraud. W hen the INS discovered the

fraud, it denied his 1996 petition. 2 Id. at 249. Petitioner maintains that he was

never advised of the submission of the fraudulent documents or of the IN S’s

denial of the 1996 petition.

      Petitioner eventually moved to Denver where he met his current wife,

Trimika W illiams, a United States citizen. In 1998, petitioner contacted attorney



1
       Contrary to the statement in petitioner’s opening brief, there is no evidence
that petitioner signed blank documents. Pet’r Opening Br. at 1. Petitioner’s
citation to his motion to reopen as support for factual statements in his brief is
inadequate to discharge his duty under Fed. R. App. P. 28(a)(9)(A) to provide
record cites in support of his contentions. See Doeblers’ Pa. Hybrids, Inc. v.
Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006). The only reference in the record
to blank documents occurred when respondent’s attorney asked at the removal
hearing whether the documents petitioner signed had been blank. Petitioner’s
counsel indicated that she did not know. Admin. R. at 188.
2
       “O n M arch 1, 2003, the Immigration and Naturalization Service [(INS)]
ceased to exist as an independent agency within the Department of Justice, and its
functions were transferred to the Department of Homeland Security.” United
States v. Sandoval, 390 F.3d 1294, 1296 n.2 (10th Cir. 2004) (citing Homeland
Security Act, Pub. L. No. 107-296 Sec. 471, 116 Stat. 2135 (Nov. 25, 2002),
6 U.S.C. § 291). Petitioner’s cases cover the time period before and after the
transfer of functions between the INS and the DHS. For simplicity, this opinion
refers to the immigration agency as the INS.




                                         -3-
Brandon M arinoff to discuss the possibility of adjusting his status based on his

marriage to M s. W illiams. M r. M arinoff, who had obtained documents relative to

the 1996 petition through a Freedom of Information Act request, filed a second

petition to adjust status (the 1999 petition) but did not disclose to the agency or

attempt to explain the IN S’s earlier denial based on the fraudulent documents.

The box on the 1999 petition asking whether petitioner had, “by fraud or willful

misrepresentation of a material fact, ever sought to procure . . . [an] immigration

benefit” was left unchecked. Id. at 108.

      In response to the INS’s Notice of Intent to Deny [the 1999] Petition,

M r. M arinoff presented the essence of his client’s defense to the fraud charges

and asked the agency to abate the matter while it conducted an investigation of

the events surrounding the 1996 petition. Id. at 62. The agency eventually

denied the 1999 petition, although evidence of that denial does not appear in the

record. According to petitioner’s attorney, petitioner’s appeal of that denial

remains pending. 3




3
       The reference in petitioner’s opening brief to the notice of appeal in the
record is not to the appeal of the denial of petitioner’s 1999 petition but rather to
the appeal of an I-130 immediate-relative visa petition filed by M s. W illiams on
petitioner’s behalf. See Admin. R. at 72.

                                           -4-
                                Removal proceeding

      After the denial of the 1999 petition, the agency referred petitioner’s case

to the immigration court for removal proceedings, asserting only that petitioner

had overstayed his original visa. At the initial master calendar hearing, petitioner

obtained a continuance to investigate the fraud matter. At a second master

calendar hearing, he conceded removability, and the m atter w as set over for a

merits hearing on adjustment of status.

      At the merits hearing, petitioner’s attorney, an associate of M r. M arinoff,

renewed her previous (and untimely) motion for another continuance and argued

that, because there was no knowing misrepresentation on the part of petitioner,

there could be no fraud. She also requested “in the future possibly a hearing o[r]

formal hearing on the finding of fraudulent marriage.” Id. at 183. Petitioner’s

attorney did not dispute the INS’s assertion that he had no right of relief at the

time of the hearing, id. at 186, a tacit admission that petitioner was ineligible for

voluntary departure.

      At the end of the hearing, the IJ denied petitioner’s motion for another

continuance and ordered him deported to Ghana. Petitioner w as then allowed to

make a brief personal statement in which he explained the circumstances

surrounding the 1996 fraudulent application. M r. M arinoff filed a notice of

appeal from the removal order, arguing error because of the IJ’s denial of the




                                          -5-
motion for continuance, errors in any finding regarding marriage fraud, and

deprivation of procedural and substantive due process. Id. at 161-63.

      Shortly after M r. M arinoff filed the notice of appeal, petitioner retained

new counsel located in New York who prosecuted the appeal of the removal order

before the BIA. 4 In that appeal, New York counsel focused almost exclusively on

the continuance. In closing, new counsel urged remand to the IJ for a hearing to

determine (1) whether petitioner was eligible to adjust his status or (2) whether he

was eligible for waiver of any of the grounds of ineligibility for the relief he was

seeking. Id. at 140.

      The BIA affirmed the removal decision and dismissed the appeal. Id.

at 123. In doing so, the BIA explained that the proceedings below involved a

request for a continuance pending the adjudication of a second I-130 immediate-

relative visa petition filed by petitioner’s wife. Her previous petition had already

been denied on the basis of the 1996 marriage fraud. The BIA reasoned that

      at the time of the respondent’s requested continuance he was not
      eligible for any form of relief, and, in light of the evidence of record,
      likely was not going to be eligible for the requested relief. Given the
      facts as presented, we agree that the respondent did not present
      “good cause” for a further continuance.




4
       M r. M arinoff eventually agreed to accept a one-year suspension from the
practice of law . Admin. R. at 125. According to petitioner, he is now apparently
reinstated but barred from practicing immigration law.

                                          -6-
Id. at 123. After the BIA’s affirmance, petitioner retained present counsel

who filed the motion to reopen and the petition for a writ of habeas corpus in the

district court.

                                  M otion to reopen

                                  Case No. 05-9573

       In the motion to reopen, petitioner requested remand to the immigration

court for consideration of voluntary departure or any other proper relief based on

the prejudice caused by M r. M arinoff’s ineffective assistance. Specifically,

petitioner charged, inter alia, that M r. M arinoff had improperly handled the

allegations of marriage fraud arising from the 1996 petition, failed to pursue a

waiver of inadmissibility, failed to pursue an appeal of the denial of an I-130

immediate-relative visa petition by petitioner’s wife, and failed to identify

alternative relief in the form of voluntary departure at the removal hearing.

Id. at 77.

       The BIA denied the motion to reopen, reasoning that it did “not have

jurisdiction to allow [petitioner] to seek recourse before the [INS] for his prior

counsel’s alleged ineffective assistance.” Id. at 2. As for counsel’s failure to

request voluntary departure, the BIA held that petitioner had failed to establish

his prima facie eligibility for such relief because he failed to establish that he

“warrants voluntary departure in the exercise of discretion.” Id. at 3 (citing

M atter of Assaad, 23 I&N Dec. 553 (BIA 2003), which the BIA reads to require

                                          -7-
an alien to establish that he would have prevailed at the hearing or on appeal had

the ineffective representation not occurred).

                                      Analysis

      “W e [have] jurisdiction to consider the BIA’s denial of petitioner’s motion

to reopen the proceedings” because “[i]t is considered a final, separately

appealable order.” Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004).

W hile aliens in removal proceedings have no Sixth Amendment right to effective

counsel, M ichelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990), they do have a

Fifth Amendment right to a fundamentally fair removal proceeding, Osei v. INS,

305 F.3d 1205, 1208 (10th Cir. 2002). Accordingly, a claim of ineffective

assistance of counsel in civil immigration proceedings may be based on Fifth

Amendment due process. M ichelson, 897 F.2d at 468. An alien may prevail on a

Fifth Amendment ineffective assistance of counsel claim in a removal proceeding

only by showing that “the proceeding was so fundamentally unfair that [he] was

prevented from reasonably presenting his case.” In re Lozada, 19 I& N Dec. 637,

638 (BIA 1988); see also Osei, 305 F.3d at 1208.

      W e review the denial of a motion to reopen only for abuse of discretion.

Infanzon, 386 F.3d at 1362. “The BIA abuses its discretion when its decision

provides no rational explanation, inexplicably departs from established policies,

is devoid of any reasoning, or contains only summary or conclusory statements.”

Id. (quotation omitted).

                                         -8-
      The Supreme Court has explained that at least three grounds exist upon

which the BIA may deny reopening:

      First, it may hold that the movant has not established a prima facie
      case for the underlying substantive relief sought. . . . Second, the
      BIA may hold that the movant has not introduced previously
      unavailable, material evidence . . . . Third, in cases in which the
      ultimate grant of relief is discretionary (asylum, suspension of
      deportation, and adjustment of status, but not withholding of
      deportation), the BIA may . . . simply determine that . . . the movant
      would not be entitled to the discretionary grant of relief.

INS v. Abudu, 485 U.S. 94, 104-05 (1988) (emphasis added). As noted above, the

BIA denied the motion to reopen based on its perceived lack of jurisdiction 5 and

because petitioner had not established that he would be entitled to the

discretionary relief of voluntary departure.

      In order to merit reopening based on ineffective assistance of counsel, a

petitioner must comply with the procedural requirements of In re Lozada, 19 I& N

Dec. 637, and further show that he was prejudiced by counsel’s ineffectiveness.

Id. at 638. Because the BIA found that petitioner complied with the procedural

5
       The BIA provided no support for its holding that it had no jurisdiction to
allow petitioner “to seek recourse before the [INS] for his prior counsel’s alleged
ineffective assistance.” Admin. R. at 2. However, “[w]hile we may not supply a
reasoned basis for the agency’s action that the agency itself has not given, we will
uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S.
281, 285-86 (1974). Because the matter at hand arose in the course of a removal
hearing that charged petitioner solely with being a simple overstay, any claims
arising from M r. M arinoff’s alleged ineffective assistance surrounding either the
1996 petition or the 1999 petition were not before the BIA. W e are satisfied that
we can reasonably understand this to be the basis for the BIA’s jurisdictional
holding, a holding we can affirm on appeal.

                                         -9-
requirements of In re Lozada, we turn now to the correctness of the BIA’s

implicit decision that petitioner w as not prejudiced under the Fifth Amendment’s

rubric of due process as applied in civil immigration proceedings. Here, as noted

above, the test is whether “his counsel’s ineffective assistance so prejudiced him

that the proceeding was fundamentally unfair.” Akinwunmi v. INS, 194 F.3d

1340, 1341 n.2 (10th Cir. 1999).

      Because removal proceedings are civil in nature, the extensive

constitutional safeguards of criminal proceedings do not apply, and the procedural

due process attending removal proceedings is limited to an opportunity to be

heard at a meaningful time and in a meaningful manner. Schroeck v. Gonzales,

429 F.3d 947, 951-52 (10th Cir. 2005). In his discussion of the standard of

prejudice aliens in petitioner’s situation must demonstrate, petitioner cites United

States v. Aguirre-Tello, 324 F.3d 1181 (10th Cir. 2003), a criminal deportation

case, for the proposition that he need only “demonstrate prejudice which might

have affected the outcome of the proceedings.” Pet’r Opening Br. at 30. Under

this standard, he asserts that “it’s practically impossible to suggest that the

outcome might not have been different.” Id. at 31. Indeed; and that is why we

have rejected this as the standard to prove fundamental unfairness, even in

criminal proceedings. W hat petitioner overlooks is that our first opinion in

Aguirre-Tello was vacated, and that on rehearing en banc, we held that the

standard for proving fundamental unfairness in a criminal context, with its

                                          -10-
heightened constitutional protections, is whether there is a reasonable likelihood

that the outcome would have been different. United States v. Aguirre-Tello,

353 F.3d 1199, 1209 (10th Cir. 2004) (en banc).

      Against this backdrop, we now examine petitioner’s claims of prejudice.

It is important to keep in mind that the proceeding petitioner seeks to reopen is

the underlying removal proceeding. His claim of ineffective assistance of

counsel, therefore, is confined to counsel’s actions surrounding that proceeding

and, despite present counsel’s efforts, cannot be read to include prior counsel’s

actions regarding the 1999 petition or the circumstances surrounding the 1996

petition.

      Petitioner first points to counsel’s concession at the removal hearing that he

was not eligible for voluntary departure as an example of the prejudice he has

suffered as a result of counsel’s ineffective assistance. 6 In order to establish

prejudice under these circumstances, petitioner must demonstrate that he was

eligible for relief in the form of voluntary departure. See In re Assaad, 23 I& N

Dec. at 562. There are several showings an alien must make before he or she is

eligible for the discretionary grant of voluntary departure. See 8 C.F.R.

§ 1240.26(c). Our review of the record has failed to uncover any evidence that

6
       As petitioner explains, “[i]ndividuals who leave the United States under
an order of removal are barred from re-entering for a period of ten years. . . .
8 U.S.C. § 1182(a)(9)(A). In contrast, individuals who depart under an order of
voluntary departure are free to immediately apply for re-admission if eligible for
a visa.” Pet’r Opening Br. at 18 n.8.

                                          -11-
petitioner made this show ing in the materials before either the IJ or the BIA. 7

Other than conclusory statements going to petitioner’s eligibility for voluntary

departure in his motion to reopen, which are insufficient to discharge petitioner’s

prima facie burden, petitioner has failed to establish that he meets the

requirements relative to residency, character, criminal record, or financial means

and intent to depart required before consideration for discretionary voluntary

departure is even possible. See id. Because petitioner has failed to show a

reasonable likelihood of a different outcome had his counsel treated the voluntary

departure issue differently, he has failed to demonstrate the prejudice necessary to

establish a due process violation. The BIA therefore did not abuse its discretion

in refusing to reopen based on petitioner’s failure “to establish his prim a facie

eligibility for voluntary departure in his motion to reopen.” Admin. R. at 3.

      Petitioner’s second example of prejudicially ineffective assistance of

counsel involves counsel’s failure to challenge the INS’s finding of marriage

fraud and further failure to diligently prosecute an appeal from the denial of

petitioner’s 1999 petition. As the BIA implicitly reasoned, these matters were not

before the IJ in the removal hearing. Issues surrounding the alleged marriage

fraud should have been resolved in an appeal from the denial of the 1996 petition;

an appeal from the denial of the 1999 petition is apparently still pending.



7
      As noted earlier, petitioner had retained new counsel, although not his
present counsel, for his appeal of the removal order to the BIA.

                                         -12-
      W e agree with petitioner that the presence in his record of evidence of a

fraudulent marriage intended to win an immigration benefit probably colored the

removal proceedings and may have even created the impression that petitioner

was attempting to continue a pattern of fraud. The INS’s attorney referred

repeatedly to the evidence of fraud in petitioner’s immigration file. See id. at

181-82, 187. In denying petitioner any relief, the IJ stated, “I think that this thing

has been developing where he came to the United States and he was going to stay

one w ay or the other. If he had to marry 10 women, he’s going to marry 10. He’s

married two already. I’m not going to listen to it anymore.” Id. at 189-90.

      Again, the problem for petitioner w ith this argument is that his attorney’s

actions regarding the prior petitions were not before the IJ in the removal hearing.

The only ground for removal indicated in the notice to appear was petitioner’s

status as an overstay. Id. at 255. Any issues of previous fraud went unmentioned

in the notice. Therefore, the IJ would not have been able to undo the denials of

petitioner’s two prior attempts to adjust his status. Given the procedural posture

of petitioner’s case at the removal hearing, it was not reasonably likely that

representation by other competent counsel would have changed the outcome. The

BIA thus did not abuse its discretion in concluding that it “did not have

jurisdiction to allow the respondent to seek recourse before the [INS] for his prior

counsel’s alleged ineffective assistance.” Id. at 2.




                                         -13-
      Petitioner argues finally that due process requires a hearing on the merit of

his voluntary departure request. W e have already affirmed the BIA’s conclusion

that petitioner did not establish his prima facie eligibility for discretionary

voluntary departure as a basis for his motion to reopen. To the extent this

argument is an attempt to have this court reverse the ruling of the IJ on that

matter, w e lack jurisdiction to take such action. See Ekasinta v. Gonzales,

415 F.3d 1188, 1190 (10th Cir. 2005).

      In summary, we conclude that the BIA provided rational explanation for its

denial of the motion to reopen, it did not depart from established policies, and it

provided adequate reasoning to allow judicial review. See Infanzon, 386 F.3d at

1362. The petition for review in No. 05-9573 is therefore denied.

                                   H abeas petition

                                  Case No. 05-9587

      Petitioner’s petition for a writ of habeas corpus was pending in the district

court on M ay 11, 2005, the date of the enactment of the Real ID Act. “[T]he Real

ID Act eliminates a district court’s jurisdiction over habeas petitions challenging

final orders of removal. However, the Real ID Act did not eliminate a district

court’s jurisdiction to review habeas petitions challenging an alien’s detention.”

Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006). Here, petitioner filed a

mixed petition challenging both the IJ’s removal order and his continued

detention. Because the challenge to his detention is grounded in the removal

                                          -14-
order rather than based on some inherent problem w ith the detention itself,

how ever, the district court properly transferred the petition to this court, and w e

will treat it as a petition for review of the removal order. 8 W e have jurisdiction to

review the latter under 8 U.S.C. § 1252(a). Id. at 1132.

                                       Analysis

      Petitioner’s habeas petition raises the same issues as his petition for review

of the BIA’s denial of his motion to reopen. Essentially, he argues that counsel’s

handling of the voluntary departure issue and his failure to challenge the INS’s

earlier fraud finding resulted in the issuance of a removal order and violated his

rights to substantive and procedural due process.

      The BIA affirmed the removal order in a brief order authorized by 8 C.F.R.

§ 1003.1(e)(5) and signed by one BIA member. The BIA’s decision, therefore,

constitutes the final order of removal, and “we will not affirm on grounds raised

in the IJ decision unless they are relied upon by the BIA in its affirmance.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “[W ]here the BIA

determines a petitioner is not eligible for relief, we review the decision to

determine whether the record on the whole provides substantial support for that

determination.” Id.

8
      The Conference Report accompanying the Real ID Act makes it clear that
§ 106 of that Act does not eliminate district court jurisdiction to review habeas
“challenges to detention that are independent of challenges to rem oval orders.”
See H.R. Rep. No. 109-72, at 175 (2005) (Conf. Rep.) as reprinted in 2005
U.S.C.C.A.N. 240, 300 (emphasis added).

                                          -15-
      In appealing the removal order to the BIA, petitioner focused almost

exclusively on the propriety of the IJ’s denial of a second continuance, which

petitioner had sought to permit the adjudication of his wife’s latest I-130

immigrant-relative visa petition. See Admin. R. at 136-40. In affirming the

removal order, the BIA reasoned that because petitioner had admitted that a prior

petition to adjust his status had been denied because of fraud, “he was not eligible

for any form of relief, and, in light of the evidence of record, likely was not going

to be eligible for the requested relief.” Id. at 123. Therefore, the BIA concluded

that petitioner had not presented good cause to justify the second continuance.

                                     Conclusion

      Our review of the record satisfies us that the BIA’s affirmance of the

removal order is supported by substantial evidence in the record as a whole.

The petition for a writ of habeas corpus, converted in this court to a petition for

review of petitioner’s removal order, and assigned No. 05-9587, is therefore

D EN IED . The petition for review in No. 05-9573 is also DENIED.


                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge




                                         -16-
