                                                             [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                   MAY 13, 2009
                            No. 08-12141        THOMAS K. KAHN
                                                     CLERK
                        Non-Argument Calendar
                      ________________________

                        Agency No. A95-542-806

LUIS E. ALARCON LEON,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                              (May 13, 2009)


Before EDMONDSON, Chief Judge, CARNES and WILSON, Circuit Judges.
PER CURIAM:

      Petitioner Luis Leon (“Petitioner”) is a native and citizen of Columbia. He

seeks review of the Bureau of Immigration Appeals’ (“BIA”) denial of his appeal

of the Immigration Judge’s (“IJ”) denial of his Motion to Reopen. Petitioner had

moved to reopen the IJ’s final order of a grant of voluntary departure. Petitioner

contends for and relies on ineffective assistance of counsel: he contends that his

counsel coerced him into withdrawing his application for asylum, withholding of

removal, and protection under the United Nations Convention on Torture and other

Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Petitioner’s

counsel denied these contentions in an affidavit, and the IJ found Petitioner not

credible. Because Petitioner failed to establish that he was prejudiced by counsel’s

alleged ineffectiveness, the IJ and the BIA did not abuse their discretion in

rejecting his Motion to Reopen. No reversible error has been shown; we affirm.

      “We review the denial of a motion to reopen removal proceedings for abuse

of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “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.” Cisceros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.

2008)(quotations omitted). Motions to reopen are disfavored, especially in

removal proceedings, “where, as a general matter, every delay works to the
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advantage of the deportable alien who wishes merely to remain in the United

States.” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).

      “Congress has provided by statute under section 1229a(c)(6) of the INA that

an alien has the option to file one motion to reopen a final administrative order of

removal within 90 days of that order. One of the grounds an alien may claim in a

motion to reopen is ineffective assistance of counsel.” Dukane v. U.S. Att’y Gen.,

399 F.3d 1269, 1273 (11th Cir. 2005). This Court has decided that the BIA may

require the alien to meet the following test to show ineffective assistance of

counsel:

      A motion to reopen or reconsider based upon a claim of ineffective

      assistance of counsel requires (1) that the motion be supported by an

      affidavit of the allegedly aggrieved respondent setting forth in detail

      the agreement that was entered into with counsel with respect to the

      actions to be taken and what representations counsel did or did not

      make to the respondent in this regard, (2) that counsel whose integrity

      or competence is being impugned be informed of the allegations

      leveled against him and be given an opportunity to respond, and (3)

      that the motion reflect whether a complaint has been filed with

      appropriate disciplinary authorities with respect to any violation of

      counsel’s ethical or legal responsibilities, and if not, why not.
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      Dukane, 399 F.3d at 1274.

In addition to complying with these procedural requirements, a petitioner claiming

ineffective assistance of counsel “must also show prejudice.” Id. “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.

      Petitioner failed to show a reasonable probability that the outcome of the

proceedings would have been different if Petitioner’s counsel had performed

differently. Given our limited and deferential standard of review, we decide that

the BIA and the IJ did not abuse their discretion in denying Petitioner’s Motion to

Reopen; and we affirm their decisions.

      AFFIRMED




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