                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


         United States Court of Appeals
                       For the First Circuit

No. 04-1859

                        VÍCTOR AGUILAR-OSORES,

                                Petitioner,

                                      v.

               ALBERTO GONZÁLEZ,* ATTORNEY GENERAL,
                    UNITED STATES OF AMERICA,

                                Respondent.


                ON PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                                   Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.


     Stephen A. Lagana, with whom Lagana & Associates was on brief,
for petitioner.
     Jamie M. Dowd, Attorney, Office of Immigration Litigation,
Civil Division, with whom Peter D. Keisler, Assistant Attorney
General, and David V. Bernal, Assistant Director, were on brief,
for respondent.



                              April 7, 2005




*
  Alberto Gonzáles was sworn in as United States Attorney General
on February 3, 2005.     We have therefore substituted Attorney
General Gonzáles for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25()(1); Fed. R. App. P. 43(c)(2).
            TORRUELLA, Circuit Judge.             Petitioner Víctor Aguilar-

Osores appeals a decision of the Board of Immigration Appeals

("BIA") affirming an Immigration Judge's denial of his motion to

reopen removal proceedings.           We affirm.

                                I.    Background

            Aguilar-Osores, a native and citizen of Peru, entered the

United   States   at   Miami,      Florida,      on   October    4,   1996,   as   a

nonimmigrant with authorization to remain in the United States

until January 3, 1997.             On June 4, 2001, the Immigration and

Naturalization Service ("INS")1 issued a Notice to Appear, charging

Aguilar-Osores    with      removability      under    §   237(a)(1)(B)      of   the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),

for overstaying his visa.

            In written pleadings on November 20, 2002, Aguilar-

Osores, through his counsel John Loscocco ("Loscocco"), admitted

the factual allegations against him, conceded removability, and

requested    relief    in    the     form   of   voluntary      departure.        The

Immigration Judge granted Aguilar-Osores's request for voluntary

departure until March 20, 2003. Aguilar-Osores failed to depart by

that date, and on August 27, 2003, the Department of Homeland

Security arrested him.


1
    In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.

                                        -2-
          On   November   25,   2003,   Aguilar-Osores,   through   new

counsel, filed a motion to reopen2 before the Immigration Judge on

the basis of ineffective assistance of counsel.      On December 22,

2003, Aguilar-Osores filed a memorandum of law in support of his

motion to reopen.   Aguilar-Osores contended in the memorandum that

the filing deadline for a motion to reopen should not apply to his

case because of Loscocco's ineffective assistance.

          Aguilar-Osores stated that, after he received the Notice

to Appear, he met with Loscocco for a consultation.       According to

Aguilar-Osores, he specifically asked Loscocco whether threats made

against his life as a result of his work in the anti-terrorist unit

of the Peruvian Police Department made him eligible to apply for

asylum or some other form of relief.    Loscocco told him that it was

too late to apply for any type of relief except voluntary departure

because Aguilar-Osores had been in the country for over one year,3

and also suggested that Aguilar-Osores apply to the Diversity Visa

Lottery Program.    Loscocco then allegedly told Aguilar-Osores to

attend a November 14, 2001 hearing at the Immigration Court,



2
   Aguilar-Osores also filed a motion for an emergency stay of
deportation. Since the instant appeal involves only the motion to
reopen, we do not discuss any of the facts or proceedings related
to Aguilar-Osores's motion for an emergency stay of deportation.
3
  Subject to certain exceptions, an alien must file an application
for asylum "within one year after the date of the alien's arrival
in the United States." 8 U.S.C. § 1158(a)(2)(B). There is no such
deadline for applications for withholding of removal. See 8 C.F.R.
§ 1208.4(a).

                                  -3-
request a continuance to seek legal representation, and return to

Loscocco's office. According to Aguilar-Osores, Loscocco indicated

that he would then ask for a second continuance as Aguilar-Osores's

legal representative.         Aguilar-Osores stated that he did what

Loscocco told him to do.       He also stated that he met with Loscocco

after the November 14, 2001 hearing, and again asked about the

possibility of applying for asylum.           Loscocco again told Aguilar-

Osores that it was too late to apply for asylum.         Loscocco appeared

with   Aguilar-Osores    at   the   November    20,   2002   hearing,   where

Aguilar-Osores admitted the charges against him and requested

voluntary departure.     After the hearing, Loscocco took a $500.00

cash payment from Aguilar-Osores and gave him a sticky note as a

receipt.   Loscocco also mailed Aguilar-Osores a letter reminding

him that he had to depart the United States by March 20, 2003.

           In accordance with the requirements set forth in Matter

of Lozada, 19 I & N Dec. 637, 639 (BIA 1988),4 Aguilar-Osores

attached   to   his   December   22,   2003    memorandum    in   support   of



4
   In order to screen frivolous ineffective assistance of counsel
claims, the BIA requires that a motion to reopen based on
ineffective assistance of counsel be accompanied by the following:
(1) an affidavit from the alien detailing the agreement between the
alien and the attorney; (2) evidence that the alien has informed
his attorney of the ineffective assistance allegations and has
given the attorney an opportunity to respond; (3) evidence that the
alien has filed a complaint with the appropriate disciplinary body
regarding the attorney's alleged conduct or a satisfactory
explanation for not filing such a complaint. See Matter of Lozada,
19 I & N Dec. at 639; Asaba v. Ashcroft, 377 F.3d 9, 11 (1st Cir.
2004).

                                    -4-
reopening    a   signed     affidavit    and    a     copy    of    an   ineffective

assistance of counsel complaint addressed to the Massachusetts

Office of Bar Counsel.        On January 5, 2004, Aguilar-Osores filed a

motion to supplement his motion to reopen in order to apply for

asylum based on changed circumstances in Peru.

            On February 9, 2004, Aguilar-Osores filed a copy of

Loscocco's response to the Office of the Bar Counsel addressing

Aguilar-Osores's allegations.           In this response, Loscocco stated

that, although he met with Aguilar-Osores on September 5, 2001,

Aguilar-Osores did not retain him as counsel until the day of his

removal    hearing    on    November    22,   2002,    when    he    paid   Loscocco

$500.00.      Loscocco denied telling Aguilar-Osores to request a

continuance      at   his   November    14,    2001    hearing      to   seek   legal

representation.       Loscocco also denied telling Aguilar-Osores that,

as Aguilar-Osores's legal representative, he would seek a second

continuance.      According to Loscocco, he discussed the possibility

of applying for asylum with Aguilar-Osores, but Aguilar-Osores did

not claim to fear persecution, stating instead that he had come to

the United States for economic reasons.                 Aguilar-Osores did not

mention any threats against him, and stated that he was willing to

return to Peru but hoped to stay in the United States for as long

as possible in order to make money.5                  Loscocco explained that



5
    According to Loscocco, Aguilar-Osores also claimed to have
visited the United States in 1994, but returned to Peru.

                                        -5-
Aguilar-Osores        was    likely    ineligible      for   asylum     because     (1)

Aguilar-Osores had not applied for it within one year of his

arrival in the United States, (2) the two exceptions to the one-

year deadline likely did not apply, and (3) Aguilar-Osores had

returned to Peru in 1994 after an earlier visit to the United

States.       He also explained that any claim for withholding of

removal would not be likely to succeed since Aguilar-Osores would

have to satisfy a higher burden of proof than for asylum.

              Loscocco stated that he and Aguilar-Osores also discussed

seeking      permanent       resident    status       through    an     alien      labor

certification, but that Aguilar-Osores's illegal stay in the United

States barred that possibility.            Loscocco also prepared Diversity

Visa Lottery applications for Aguilar-Osores and his wife in the

fall    of    2002.         Finally,    Loscocco      stated    that,      after    the

November 20, 2002 hearing, Aguilar-Osores did not respond to his

calls and letter regarding his departure date, and that Aguilar-

Osores never raised the issue of asylum or withholding of removal

after   the    initial      consultation.        On    February      24,    2004,    the

Immigration      Judge      denied     Aguilar-Osores's        motion      to   reopen.

Aguilar-Osores timely appealed to the BIA, which affirmed the

Immigration     Judge's      decision     on   June    15,   2004.      This     appeal

followed.




                                         -6-
                              II.    Discussion

           Aguilar-Osores raises three claims: (1) that equitable

tolling should be applied to his motion to reopen because of

ineffective assistance of counsel claim, (2) that the BIA abused

its discretion in denying the motion to reopen so that he could

apply for asylum, and (3) that Aguilar-Osores was denied due

process because he was deprived of the opportunity to seek asylum

and withholding of removal before the Immigration Judge.              We deal

with each in turn.

           "The abuse of discretion standard governs judicial review

of the denial of a     motion to reopen, regardless of the substantive

claim involved."      Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir.

2005).    We   will    find   an    abuse   of   discretion   when   "the   BIA

misinterprets the law, or acts either arbitrarily or capriciously."

Canaveral Toban v. Ashcroft, 385 F.3d 40, 45 (1st Cir. 2004)

(internal quotation marks and citation omitted).

A.   Ineffective Assistance of Counsel and Equitable Tolling

           A motion to reopen before the Immigration Court "must be

filed within 90 days of the date of entry of a final administrative

order of removal, deportation, or exclusion, or on or before

September 30, 1996, whichever is later." 8 C.F.R. § 1003.23(b)(1).

The Immigration Judge entered the order for voluntary departure on

November 20, 2002.      Aguilar-Osores filed his motion to reopen on

November 25, 2003, well past the ninety-day deadline set forth in


                                      -7-
8 C.F.R. § 1003.23(b)(1).6     Aguilar-Osores does not dispute this

fact, but instead argues that equitable tolling should be applied

to his case.   We need not reach this issue, however, because even

if Aguilar-Osores's motion to reopen had been timely, he failed to

establish ineffective assistance of counsel.

          An alien claiming ineffective assistance of counsel must

generally demonstrate prejudice, see Canaveral Toban, 385 F.3d at

46,7 which Aguilar-Osores has failed to do in the instant case.

The   Immigration    Judge,    after    evaluating   Aguilar-Osores's

allegations and the response by Loscocco, stated that "this Court

does not find a valid ineffective assistance of counsel claim."

The   Immigration   Judge   concluded   that   Loscocco   "offered   the

respondent [Aguilar-Osores] a comprehensive consultation disclosing

all the potential consequences of filing any form of relief."        The

Immigration Judge also found that Aguilar-Osores had come to the

United States to earn money, that Loscocco provided him with

comprehensive and careful advice, and that it was Aguilar-Osores's

"uncoerced decision" to pursue voluntary departure.           In other

words, the Immigration Judge found that Aguilar-Osores made a fully


6
  Aguilar-Osores's brief appears to argue from the premise that he
had 180 days to file motion to reopen. However, the 180-day time
limit only applies where an order of removal or deportation has
been entered in absentia. See 8 C.F.R. § 1003.23(b)(4)(ii)-(iii).
Aguilar-Osores was present at his hearing on November 20, 2002, and
the ninety-day time limit therefore applies.
7
  The requirement to demonstrate prejudices applies "except in the
extreme case." Canaveral Toban, 385 F.3d at 46.

                                 -8-
informed choice to pursue only voluntary departure, given the low

chances for success on an asylum claim and that Aguilar-Osores had

come to the United States for economic reasons.

            The BIA affirmed this finding, noting that Aguilar-Osores

"did not establish a prima facie case for reopening as his former

counsel did not provide ineffective assistance."     After carefully

reviewing the record, we do not believe that the BIA abused its

discretion in making this finding. We therefore find that Aguilar-

Osores has not shown prejudice and affirm the BIA's decision

regarding ineffective assistance of counsel.

B.   Application for Asylum

            The ninety-day limit to file a motion to reopen does not

apply "if the basis of the motion is to apply for asylum . . . and

is based on changed country conditions arising in the country of

nationality . . . if such evidence is material and was not

available and could not have been discovered or presented at the

previous proceeding." 8 C.F.R. § 1003.23(b)(4)(i). Aguilar-Osores

argues that the BIA abused its discretion in finding that he failed

to meet the standards set forth in 8 C.F.R. § 1003.23(b)(4)(i).   We

disagree.

            Aguilar-Osores argues that he presented evidence of the

resurgence of the Shining Path guerilla organization in Peru during

2002 and 2003.   Since Aguilar-Osores worked for the anti-terrorist

unit as a policeman in Peru and was involved in thwarting several


                                 -9-
Shining    Path   operations,   he    argues   that   the   Shining   Path's

resurgence would put him in danger should he return to Peru.              As

the BIA noted, the alleged resurgence of the Shining Path began at

least seven months prior to Aguilar-Osores's November 22, 2002

hearing.   Accordingly, this evidence was either available or could

have been discovered or presented at the November 22, 2002 hearing.

Aguilar-Osores attempts to circumvent this problem by arguing that

this would have been impossible due to the alleged ineffective

assistance of counsel.     However, as we have already noted above,

Loscocco did not provide ineffective assistance.              We therefore

agree with the BIA that evidence of the Shining Path's resurgence

was available and could have been presented at Aguilar-Osores's

November 22, 2002 hearing, and find no abuse of discretion in the

BIA's decision regarding Aguilar-Osores's failure to meet the

requirements of 8 C.F.R. § 1003.23(b)(4)(i).

C.   Due Process

            Finally, Aguilar-Osores argues denial of due process

because, as a result of ineffective assistance of counsel, he was

deprived of the opportunity to seek asylum and withholding of

removal before the Immigration Judge.8           However, since Aguilar-




8
  Aguilar-Osores failed to raise this claim before the Immigration
Judge and BIA. We could therefore find that he has waived this
claim.   See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999).
However, we bypass the waiver issue because the claim is obviously
meritless.

                                     -10-
Osores has failed to prove ineffective assistance of counsel, see

supra Part II(A), we find no due process violation.

                            III.    Conclusion

            For   the   reasons    stated   above,   the   BIA's   order   is

affirmed.

            Affirmed.




                                    -11-
