                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             August 30, 2005
                           No. 05-10461                   THOMAS K. KAHN
                       Non-Argument Calendar                    CLERK
                     ________________________

                       Agency No. A95-916-135

ZHONG JIN HUANG,

                                                                  Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                Respondent.

                     ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                      _________________________
                            (August 30, 2005)


Before ANDERSON, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:
      Zhong Jin Huang, through counsel, petitions for review of the final order of

Board of Immigration Appeals (“BIA”) denying a motion to reopen the decision of

the immigration judge (“IJ”) denying withholding of removal under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”) and finding that Huang had withdrawn his

asylum and withholding of removal claims. Because Huang’s removal

proceedings commenced after April 1, 1997, the permanent rules of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, 110 Stat. 3009 (1996) (“IIRIRA”), govern his petition for review. See

Antipova v. U.S. Att’y Gen., 392 F.3d 1259, 1264 (11th Cir. 2004).

      Huang, a native and citizen of China, arrived in the United States on August

10, 2002, and requested asylum and/or withholding of removal under the CAT.

The Immigration and Naturalization Service (“INS”) issued a referral to an IJ. At

an initial master-calendar hearing in September 2002, Huang, through counsel,

admitted the allegations contained in the referral, conceded removability, and

indicated his intention to seek asylum, withholding of removal, and protection

under the CAT. In October 2002, Huang submitted a claim for asylum,

withholding of removal and protection under the CAT, alleging persecution on

account of religion.

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      At a hearing on his asylum application, Huang was represented by Quincy

Cheng. Huang sought to withdraw his application for asylum and withholding of

removal, and proceed only on his claim for relief under the CAT. The IJ asked

Huang whether he was satisfied with his attorney’s representation and whether he

had discussed the withdrawal of the two claims with him, and Huang answered in

the affirmative. After Huang’s testimony regarding his imprisonment in China,

the IJ asked why he chose not to go forward with his asylum and withholding of

removal claims. After an off-the-record discussion, the IJ asked Cheng if he had

reviewed the underlying claim with Huang, and Cheng responded that he had. The

IJ then asked twice if it was Cheng’s determination that it was not in Huang’s best

interest to go forward with these claims, and Cheng responded that it was.

      The IJ found that Huang had withdrawn his application for asylum and

withholding of removal. The IJ denied relief under the CAT, finding that Huang

had not met the high standard required.

      Huang appealed to the BIA with the assistance of attorney David Su.

Huang argued that the IJ’s finding that he had effectively withdrawn his

application for asylum and withholding of removal was not supported by the

record, because his attorney gave no explanation for the withdrawal of the claims




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and the attorney acknowledged that Huang wanted to proceed with his asylum

claim. The BIA adopted and affirmed the decision of the IJ.

      Huang filed a motion to reopen, again arguing that he did not intend to

withdraw his asylum and withholding of removal application but did not expressly

argue ineffective assistance of counsel. He attached an affidavit stating that he did

not understand why his attorney, Cheng, told him not to apply for asylum. He

further stated that Cheng told him that asylum and protection from torture were the

same thing, and that he thought he was still applying for asylum. The BIA denied

the motion, finding insufficient reason to alter its decision affirming the IJ’s

decision. The BIA found that Huang failed to present new and previously

unavailable evidence to support his claim because he provided no indication why

his affidavit was previously unavailable. The BIA further noted that Huang had

failed to comply with the requirements for motions based on an ineffective

assistance of counsel claim, as set forth in Matter of Lozada, 19 I&N Dec. 637

(BIA 1988). This petition for review followed.

      On appeal, Huang argues that the BIA erred in denying his motion to reopen

because material new evidence indicated that his withdrawal of his application for

asylum and withholding of removal was “without informed consent.” He contends

that he received and relied upon ineffective assistance of counsel from Cheng,

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because Cheng told him that CAT relief was the same as asylum and withholding

of removal. According to Huang, the BIA misapplied the law by rigidly applying

the Lozada requirements because he substantially complied with the rule because

his affidavit and the record show a clear case of ineffective assistance of counsel.

Additionally, he argues that Su, his counsel before the BIA, provided ineffective

assistance by failing to comply with the Lozada requirements. He further contends

that his due process was violated because his withdrawal of these claims was not

knowing and voluntary.

      We review the BIA’s denial of a motion to reopen for an abuse of

discretion. See Gbaya v. U. S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003).

Judicial review of a denial of a motion to reopen in removal proceedings is limited

to determining “whether there has been an exercise of administrative discretion

and whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir

v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted). Motions to

reopen are disfavored, especially in a removal proceeding, “where, as a general

matter, every delay works to the advantage of the deportable alien who wishes

merely to remain in the United States.” I.N.S. v. Doherty, 502 U.S. 314, 323, 112

S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992). “An alien may file one motion to

reopen, [which] shall state the new facts that will be proven at a hearing to be held

                                          5
if the motion is granted, and shall be supported by affidavits or other evidentiary

material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). “A motion to

reopen proceedings shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing. . . .” 8 C.F.R. § 1003.2(c)(1).

      The BIA has required that, when filing a motion to reopen based on a claim

of ineffective assistance of counsel, the alien must: (1) submit an affidavit

attesting to the relevant facts; (2) inform former counsel of the allegations and

allow an opportunity to respond; and (3) if asserting that the prior counsel’s

handling of the case violated ethical or legal responsibilities, state whether a

complaint has been filed with the appropriate disciplinary authorities, and, if not,

why not. Lozada, 19 I&N Dec. at 639. We have held that the BIA does not abuse

its discretion by requiring aliens to meet the three procedural requirements of

Lozada, but have not held whether the BIA may enforce strict compliance or must

also accept substantial compliance. Gbaya, 342 F.3d at 1221-23. We have further

held that failure to comply with two of the three Loada requirements did not

constitute substantial compliance. Id. at 1222 n.2.

      Because Huang failed to raise his due process and ineffective assistance of

appellate counsel claims before the BIA, we conclude that he failed to exhaust his

                                          6
administrative remedies and, thus, we lack jurisdiction to address these claims.

See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Al Najjar v. Ashcroft, 257 F.3d 1262,

1285 n.14 (11th Cir. 2001) (stating that we lack jurisdiction when an alien fails to

exhaust all administrative remedies prior to judicial review). Huang submitted an

affidavit with his motion to reopen, stating that he had not understood what his

attorney told him and that he thought he was still applying for asylum. However,

this did not constitute new evidence, because the evidence was clearly available

earlier when Huang made essentially the same arguments in his appeal. See INA §

240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.2(c)(1).

Furthermore, Huang did not give his previous attorney notice or an opportunity to

respond, which are the second and third Lozada requirements. Because Huang

failed to comply with two of the three Lozada requirements and his claim was not

based on new evidence, we conclude that the BIA did not abuse its discretion in

denying his motion to reopen. See Gbaya, 342 F.3d at 1221-23. Accordingly, we

deny the petition for review.

      PETITION DENIED.




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