                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 9 2004
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    EDWARD AKINSOLA
    AKINWUNMI; MOBOLAJI O.
    AKINWUNMI; CHRISTOPHER I.
    AKINWUNMI,
                                                         No. 03-9539
                Petitioners,                         (Nos. A74-665-527;
                                                A74-665-528; and A72-449-841)
    v.                                               (Petition for Review)

    JOHN ASHCROFT, Attorney General
    of the United States,

                Respondent.


                               ORDER AND JUDGMENT         *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
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.

       Petitioners Edward Akinsola and Mobolaji O. Akinwunmi and their child,

Christopher I. Akinwunmi, appeal from the decision of the Board of Immigration

Appeals (BIA) declining to reopen their applications for asylum and withholding

of removal. We deny the petition for review.

       Mr. Akinwunmi and his wife are natives and citizens of Nigeria. Their

child was born in Austria when Mrs. Akinwunmi worked there as a diplomat for

Nigeria. Mr. Akinwunmi entered the United States on a visitor’s visa in April

1993, with authorization to remain for thirty days. He did not depart. His wife

and child entered the United States in July 1995, on a six-month visa. They also

did not depart.   In 1996, they filed an asylum claim, but were denied.

Subsequently, the INS commenced deportation proceedings. Petitioners conceded

deportability, but renewed their application for asylum. The Immigration Judge

(IJ) denied their application and granted them voluntary departure. Petitioners

appealed to the BIA, which dismissed their appeal as untimely.

       Petitioners then appealed to this court arguing that their counsel was

ineffective because he failed to file a timely notice of appeal to the BIA. See

Akinwunmi v INS, 194 F.3d 1340 (10th Cir. 1999).      This court denied review and




                                          -2-
dismissed their petition because petitioners had failed to exhaust their

administrative remedies. See id. at 1341.

      Petitioners accordingly filed a petition to reopen with the BIA. The BIA

denied the petition to reopen, which it construed as a petition for reconsideration,

holding that petitioners had failed to meet the requirements for showing

ineffective assistance of counsel because they had failed to show prejudice. The

BIA noted in particular that petitioners had failed to address how the IJ had erred

in his decision.

      Petitioners now appeal that decision. They argue that (1) the BIA should

have reopened their case based on ineffective assistance of counsel because

counsel failed to file a timely notice of appeal, (2) they did show prejudice from

counsel’s untimely filing of a notice of appeal, and (3) the BIA erred in

characterizing their motion to reopen as a motion to reconsider. Petitioners note

that they fear persecution because of Mr. Akinwunmi’s political beliefs based on

the fact that Mr. Akinwunmi was an independent and critical journalist in Nigeria.

They contend that government security forces targeted him for persecution

because of his profession.

      A motion to reopen shall not be granted unless it appears that the evidence

is material and was not previously available. See 8 C.F.R. § 1003.2(c)(1).

Further, the BIA has broad discretion to grant or deny a motion to reconsider or a


                                         -3-
motion to reopen proceedings. INS v. Doherty, 502 U.S. 314, 322-23 (1992); see

also Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003) (noting that

court would review denial of motion to reconsider for abuse of discretion); Osei

v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (reviewing the BIA’s determination

not to grant a motion to reopen for an abuse of discretion). “An abuse of

discretion may be found in those circumstances where the Board’s decision

provides no rational explanation, inexplicably departs from established policies, is

devoid of any reasoning, or contains only summary or conclusory

statements . . . .” Osei , 305 F.3d at 1208 (quotation omitted).

      [T]here is no Sixth Amendment right to counsel in a deportation
      proceeding. Because deportation proceedings are civil in nature, a
      claim of ineffective assistance of counsel in a deportation proceeding
      may be based only on the Fifth Amendment guarantee of due process.
      As a result, an alien must show that his counsel’s ineffective
      assistance so prejudiced him that the proceeding was fundamentally
      unfair.

Akinwunmi, 194 F.3d at 1341 n.2 (citations omitted).

      The BIA declined to reopen petitioners’ case because they had failed to

show prejudice from counsel’s actions as they did not address how the IJ erred in

his decision. The BIA noted that although they asserted that Mr. Akinwunmi had

a well-founded fear of persecution based on political opinion, that statement was

conclusory and did not address the IJ’s decision.




                                          -4-
      The BIA has set forth the analysis it follows in addressing an alien’s claim

of ineffective assistance of counsel. See In re Lozada, 19 I. & N. Dec. 637, 1988

WL 235454 (1988). Petitioners properly addressed the listed four factors. See id.

at 639. However, the overarching principle guiding the Lozada analysis is the

fact that an alien may only prevail on an ineffective assistance of counsel claim in

a deportation proceeding by showing that he was denied due process because “the

proceeding was so fundamentally unfair that [he] was prevented from reasonably

presenting his case.” Id. at 638. Upon review of the motion to reopen, we agree

that petitioners did not show prejudice from prior counsel’s failure to file a timely

notice of appeal. Mr. Akinwunmi

      received a full and fair hearing at which he was given every
      opportunity to present his case. [He] does not allege[] any
      inadequacy in the quality of prior counsel’s representation at the
      hearing. The immigration judge considered and properly evaluated
      all the evidence presented, and his conclusions that the respondent
      did not merit a grant of [asylum or withholding of removal] as a
      matter of law are supported by the record.

Id. at 640.

      To this court, Mr. Akinwunmi argues that he was an independent and

critical journalist in Nigeria, as a result of which he was targeted by government

security forces. He maintains that because he was denied appellate review, he

was prevented from reasonably presenting his case, citing In re N-K- & V-S-,

Applicant, 21 I. & N. Dec. 879, 1997 WL 123906 (1997). We disagree. In N-K,


                                         -5-
the BIA found that the alien had been prevented from reasonably presenting her

case before the IJ, because counsel did not inform her of the hearing, thus

preventing her from being present. Id. at 881. The Akinwunmis were present and

did present their case to the IJ. Under our deferential standard of review, and

observing the due process guarantees of the Fifth Amendment, we hold that the

BIA did not abuse its discretion when it denied petitioners’ motion to reopen.

      Finally, petitioners argue that the BIA erred in mischaracterizing their

motion to reopen as a motion to reconsider. Petitioners assert that by

characterizing their motion as one for reconsideration, the BIA placed them in a

“Catch 22” position, which is punitive and erroneous.      See Aplt. Br. at 11.   We

need not resolve this issue. Under either characterization, the BIA did not abuse

its discretion in denying petitioners’ motion.

      The petition for review is DISMISSED.



                                                        Entered for the Court



                                                        Paul J. Kelly, Jr.
                                                        Circuit Judge




                                           -6-
