     Case: 17-60124      Document: 00514589679         Page: 1    Date Filed: 08/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-60124                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                        August 7, 2018

QINGLIN CHENG,                                                          Lyle W. Cayce
                                                                             Clerk
                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A095 585 785


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Qinglin Cheng seeks review of the February 10, 2017 decision of the
Board of Immigration Appeals (BIA) denying his second motion to reopen
removal proceedings. That motion complained that he received ineffective
assistance of counsel in relation to his first motion to reopen, which was denied
as untimely.      Although the BIA recognized that the time and number
limitations on motions to reopen could be tolled by ineffective assistance of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-60124    Document: 00514589679    Page: 2   Date Filed: 08/07/2018


                                No. 17-60124

counsel, it determined also that Cheng had not shown that he received
ineffective assistance of counsel or that he had complied with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
      To the extent that Cheng complains that the BIA abused its discretion
in refusing to reopen his removal proceedings sua sponte, we lack jurisdiction.
See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). The
petition for review is DISMISSED IN PART.
      Cheng has made no argument with respect to the BIA’s Lozada
determination except to note that, at the time he filed his second motion to
reopen, he was proceeding pro se. He has failed to show that the BIA abused
its discretion. See Gonzalez-Martinez v. Lynch, 603 F. App’x 344, 345 (5th Cir.
2015) (alien abandoned by failing to address challenge to BIA’s conclusion that
she failed to comply with Lozada; citing Soadjede v. Ashcroft, 324 F.3d 830,
833 (5th Cir. 2003)); see also Rodriguez-Manzano v. Holder, 666 F.3d 948, 953
(5th Cir. 2012) (requiring strict compliance with Lozada requirements).
      Nor has he shown that a petition for review of the denial of his original
motion to reopen would have succeeded; that is, that counsel could have shown
that the BIA abused its discretion in determining that the initial motion as
untimely. Thus, he has failed to make any showing that he was prejudiced by
counsel’s representation. See Caceres v. Lynch, 672 F. App’x 433, 434 (5th Cir.
2016) (petitioner failed to comply with Lozada and did not show prejudice for
counsel’s alleged ineffective assistance). The petition for review is DENIED
IN PART.




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