                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 SEPT 19, 2006
                               No. 05-17208                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                           Agency No. A96-437-623

SIANTONO WENAS,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

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

                             (September 19, 2006)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Siantono Wenas, a citizen of Indonesia and a Chinese Christian, seeks
review of a final order by the Board of Immigration Appeals (“BIA”), denying his

motion to reopen the BIA’s order denying asylum under Immigration and

Nationality Act (“INA”) § 208(a)(1), 8 U.S.C. § 1158(a)(1), and withholding of

removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). After the BIA adopted and

affirmed the immigration judge’s (“IJ”) decision denying Wenas’s application for

asylum and withholding of removal, he filed a motion to reopen. Wenas argued

that his previous attorney, who represented him in proceedings before the IJ and

BIA, was ineffective because he failed to submit any documentation supporting

Wenas’s claim that Chinese Christians are persecuted in Indonesia. In support of

his motion to reopen, Wenas submitted several documents concerning religious

violence in Indonesia.

      On appeal, Wenas argues that the BIA relied on the wrong standard for

determining prejudice in an ineffective assistance claim, requiring him to show that

“it [was] likely that [he] would have prevailed” below. Citing to Dakane v. U.S.

Attorney General, 399 F.3d 1269 (11th Cir. 2005) (per curiam), he contends that

the correct standard is a reasonable probability of a different outcome, which is less

stringent than the “more likely than not standard.” Moreover, he argues, we

subsequently corrected our initial opinion in Dakane, clarifying that the reasonable

probability standard is the correct standard, but the BIA cited to the earlier,



                                           2
uncorrected opinion. Consequently, Wenas asserts, we must remand the case

because it cannot be upheld on any grounds not articulated in the record. Next, he

contends that he was prejudiced by his attorney’s representation because there was

a reasonable probability that the omitted supporting documentation would have

shown that there was a pattern or practice of discrimination against Chinese

Christians in Indonesia, entitling him to a presumption that he would face future

persecution if he returned to Indonesia.

      We have construed 8 U.S.C. § 1252(a)(1) to give us jurisdiction to review

orders on motions to reopen, implicitly considering such orders to be “final

order[s] of removal” under the statute. Patel v. U. S. Att’y Gen., 334 F.3d 1259,

1261 (11th Cir. 2003). We review the denial of a motion to reopen removal

proceedings for an abuse of discretion. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,

1340 (11th Cir. 2003) (per curiam). We will overturn the BIA’s decision only if it

exercised its discretion in an arbitrary or capricious manner. Abdi v. U.S. Att’y

Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (per curiam).

      An alien can move to reopen proceedings on the basis of ineffective

assistance of counsel, but “to establish the ineffective assistance of counsel in the

context of a deportation hearing, an alien must establish that his or her counsel's

performance was deficient to the point that it impinged upon the fundamental



                                           3
fairness of the hearing such that the alien was unable to reasonably present his or

her case.” Dakane, 399 F.3d at 1274 (quotations and citations omitted). To do

this, the petitioner must show prejudice, which means that the petitioner must

demonstrate a “reasonable probability that but for the attorney’s error, the outcome

of the proceedings would have been different.” Id.

       Wenas’s argument that the BIA relied on an incorrect standard for

determining ineffective assistance of counsel, holding him to a stricter “more likely

than not” standard, is meritless. The BIA explicitly stated that prejudice in this

context “means that it is likely that an alien would have prevailed”–not that the

alien “more likely than not” would have prevailed, as Wenas claims. Moreover, in

Dakane, we cited with approval several variations of the above-stated standard,

including: (1) “[An] alien must show . . . actual prejudice by making a prima facie

showing that he would have been eligible for the relief,” and (2) “[P]roving

prejudice requires the Petitioner to make a prima facie showing that . . . he would

have been entitled to relief . . . .” 399 F.3d at 1274 (quotations and citations

omitted). Thus, the BIA’s substitution of the term “likely” for “reasonable

probability,” when it otherwise correctly stated the law, is insufficient to show that

the BIA applied an incorrect standard.

      Wenas’s argument that there was a reasonable probability that the omitted



                                           4
documentation would have led to a different outcome in his proceedings is

similarly unpersuasive. Before denying Wenas’s application, the IJ considered the

2002 Department of State Country Report on Human Rights Practices for

Indonesia and the 2003 Department of State International Religious Freedom

Report for Indonesia (“the Reports”), both of which adequately conveyed

Indonesia’s history of religious violence against Chinese Christians. The

additional materials Wenas filed with his motion to reopen predate the Reports and

are largely generalized accounts of religious violence in Indonesia. These

additional materials do not demonstrate a reasonable probability of a different

outcome in Wenas’s proceedings. Therefore, because the IJ adequately considered

Indonesia’s history of religious violence, the BIA did not abuse its discretion in

concluding that Wenas’s attorney’s failure to file supporting documentation did not

prejudice Wenas.

       Because Wenas has not established that the BIA applied an incorrect

standard of review or that his attorney’s omission of supporting documentation

prejudiced him, the BIA did not abuse its discretion in denying Wenas’s motion to

reopen its order.1 Accordingly, we deny the petition.


       1
         To the extent that Wenas challenges the IJ’s and BIA’s underlying decision denying his
application for asylum and withholding of removal, Wenas did not file a petition for review of
the original BIA decision on appeal, and, thus, the merits of that appeal, as well as the merits of
the IJ decision, are outside of our jurisdiction. See Jaggernauth v. U.S. Att’y Gen., 432 F.3d

                                                 5
       PETITION DENIED.




1346, 1350 (11th Cir. 2005) (per curiam) (citing INA § 242(b)(1)-(2), 8 U.S.C. § 1252(b)(1)-(2))
(“To seek judicial review of an order of removal, an alien must file a petition for review with the
federal appellate court within 30 days of the BIA’s issuance of the final order.”); see also
Dakane, 399 F.3d at 1272 n.3 (holding that this limitation period is “‘mandatory and
jurisdictional’”) (quoting Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549, 131 L. Ed. 2d
465 (1995)).

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