                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-12963         ELEVENTH CIRCUIT
                                                 FEBRUARY 18, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                Agency Nos. A097-625-791, A097-625-792

VILMA EDITH HODGES,
JOHN JAIRO HODGES,
DIEGO CAMILO REYES,
LORENA ANDREA P. REYES,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                           (February 18, 2010)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Vilma Edith Hodges, her husband, John Jairo Hodges, and their children,

Diego Camilo Reyes and Lorena Andrea P. Reyes, through counsel, seek review of

a Board of Immigration Appeals order denying their motion to reopen removal

proceedings. Specifically, the Hodges argue that the BIA erred in denying their

motion to reopen because they received ineffective assistance of counsel.1

       In reviewing the BIA’s denial of a motion to reopen removal proceedings,

we employ “a deferential, abuse-of-discretion standard of review.” Kucana v.

Holder, — U.S. —, — S. Ct. —, 2010 WL 173368, at *6 (2010); Al Najjar v.

Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). “Our review is limited to

determining whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.” Abdi v. U.S.

Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (quotation marks and citation

omitted).

           An alien may file one motion to reopen removal proceedings. 8 U.S.C. §

1229a(c)(7)(A); 8 C.F.R. § 1003.2(a), (c). “Motions to reopen are disfavored,

especially in a removal proceeding, ‘where, as a general matter, every delay works

to the advantage of the deportable alien who wishes merely to remain in the United


       1
         The Hodges filed a second motion to reopen with the BIA, and that motion was based
on changed circumstances in Colombia, the country to which removal had been ordered. The
Hodges raise no challenge to the BIA’s determination that the Hodges failed to demonstrate a
material change of conditions in Colombia. The Hodges have therefore abandoned that issue.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
                                               2
States.’” Abdi, 430 F.3d at 1149 (quoting I.N.S. v. Doherty, 502 U.S. 314, 323,

112 S. Ct. 719, 724-25 (1992)). Generally, an alien must file a motion to reopen

proceedings “within 90 days of the date of entry of a final administrative order of

removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). We have said

that the statutory ninety-day filing deadline “is mandatory and jurisdictional, and,

therefore, it is not subject to equitable tolling.” Abdi, 430 F.3d at 1150.

       The BIA dismissed the Hodges’ appeal of the Immigration Judge’s decision

on May 30, 2008. The Hodges filed their motion to reopen based on ineffective

assistance of counsel approximately five months later, on October 27, 2008. The

Hodges’ motion to reopen was clearly untimely. We can find no abuse of

discretion in the BIA’s denial of the Hodges’ clearly untimely motion to reopen.

See Abdi, 430 F.3d at 1150. Even if equitable tolling of the ninety-day statutory

deadline was permitted, the Hodges do not argue in their brief that the deadline

should be tolled in their case and have therefore abandoned that issue. Sepulveda,

401 F.3d at 1228 n.2.

       Even were we to reach the substance of the Hodges’ ineffective assistance

argument, the result of this appeal would not change because that argument is

fatally flawed. An alien may base a motion to reopen on ineffective assistance of

counsel, as “[i]t is well established in this Circuit that an alien in civil deportation

proceedings . . . has the constitutional right under the Fifth Amendment Due
                                             3
Process Clause to a fundamentally fair hearing to effective assistance of counsel

where counsel has been obtained.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269,

1273 (11th Cir. 2005) (emphasis omitted). We have explained that an alien

claiming ineffective assistance of counsel in the context of a removal hearing must

show prejudice. Id. at 1274. “Prejudice 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.” Id.

      The Hodges argue in their motion to reopen and in their appellate brief that

their counsel did not meet with them in order to prepare for their removal

proceedings. However, the Hodges attached to their motion to reopen a complaint

they filed with the Florida bar in which they said that they met with their attorney

twice prior to the removal proceedings. Either way, other than a conclusory

statement that their attorney’s actions caused them prejudice, the Hodges fail to

demonstrate or even address how additional meetings with their counsel in

preparation for the removal proceedings would have changed the BIA’s decision.

See id. at 1275. Because the Hodges make no showing that their counsel’s

allegedly ineffective assistance prejudiced them, their motion to reopen on the

basis of ineffective assistance of counsel is fundamentally flawed.

      The BIA did not abuse its discretion in denying the Hodges’ motion to

reopen as untimely. Abdi, 430 F.3d at 1150. Additionally, the Hodges failed to
                                           4
show prejudice as required when an alien moves to reopen or reconsider removal

proceedings on the basis of ineffective assistance of counsel. Dakane, 399 F.3d at

1274-75. For either of these reasons, we cannot conclude that the BIA abused its

discretion when it denied the Hodges’ motion to reopen; we therefore deny the

petition for review.

      PETITION DENIED.




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