     Case: 09-60953 Document: 00511441123 Page: 1 Date Filed: 04/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 11, 2011
                                     No. 09-60953
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JULIE ADIAHA EDEMEKA,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A028 890 826


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Julie Adiaha Edemeka, a native and citizen of Nigeria, petitions this court
for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing
her appeal from an immigration judge’s (“IJ”) denial of her motion to reopen her
removal proceedings. She challenges the IJ’s decision to deny her motion, and
she challenges the refusal of the IJ and the BIA to reopen the proceedings sua
sponte. Finding both challenges to be without merit, we deny Edemeka’s petition
for review.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 09-60953

      Edemeka moved to reopen her removal proceedings on the ground that she
had received ineffective assistance of counsel. Edemeka challenges the IJ’s
denial of her motion on three grounds. First, she argues that the IJ retroactively
applied the wrong legal standard to her ineffective-assistance-of counsel claim.
Second, she argues that her motion should have been granted because she
established ineffective assistance of counsel under the standard announced in
Strickland v. Washington.1 Finally, she argues that the denial of her motion was
arbitrary and capricious.
      Edemeka’s claim that the IJ applied the wrong legal standard to her
motion is without merit. At the time that Edemeka filed her motion to reopen
in October 2008, claims of ineffective assistance of counsel during immigration
proceedings were adjudicated under the factors laid out in Matter of Lozada.2
In January 2009, the Lozada factors were superseded in part by Attorney
General Mukasey’s decision in Compean I,3 which announced a new, more
stringent test for determining when a motion to reopen removal proceedings
should be granted because of ineffective assistance of counsel. Less than five
months later, Attorney General Holder issued Compean II, which vacated
Compean I and restored the Lozada standard.4 Edemeka argues that this “mid-
stream” change in the governing legal standard violated her Due Process rights.
However, at no time was there any uncertainty whether Edemeka’s petition
would be decided under Lozada or Compean I. Compean I expressly stated that
it applied only to motions filed after the date on which it issued: “with respect
to motions filed prior to” the opinion, IJs were instructed that “they should



      1
          466 U.S. 668 (1984).

      2
          Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

      3
          Matter of Compean, 24 I. & N. Dec. 710 (Att’y Gen. 2009).

      4
          See Matter of Compean, 25 I. & N. Dec. 1, 3 (Att’y Gen. 2009).

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                                         No. 09-60953

continue to apply the Lozada factors.”5               Edemeka’s claim that some of the
proceedings in the case were “based on Compean” finds no support in the record.
The IJ was correct to rest his July 2009 denial of Edemeka’s motion to reopen on
an application of the Lozada factors.
       Edemeka’s argument that her motion should have been granted because
she has established ineffective assistance of counsel under Strickland is likewise
without merit. The Sixth Amendment right to counsel at issue in Strickland
applies only in criminal proceedings.6 Removal proceedings are civil in nature;
Strickland has no applicability here.7
       Edemeka also cannot show that the IJ’s denial of her motion to reopen was
arbitrary and capricious in light of all of the circumstances. We review the BIA’s
denial of a motion to reopen removal proceedings “under a highly deferential
abuse-of-discretion standard.”8 We must uphold a decision of the BIA, “even a
decision that we deem in error, so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” 9 The
record shows that Edemeka was not honest in her dealings with the Department
of Homeland Security; her applications for relief contained incomplete or
inaccurate information. Further, she intentionally failed to voluntarily depart



       5
           Compean I, 24 I. & N. Dec. at 741–42.

       6
        See, e.g., Carty v. Thaler, 583 F.3d 244, 257 (5th Cir. 2009) (“The Sixth Amendment
guarantees a criminal accused the right to assistance of counsel . . . .”), cert. denied, 130 S. Ct.
2402 (2010).
       7
         See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (“[A]n alien has no Sixth
Amendment right to effective counsel during removal proceedings . . . .”); see also United States
v. Villanueva-Diaz, —F.3d—, No. 10-50176, 2011 WL 693001, at *5 & n.3 (5th Cir. Mar. 1,
2011).
       8
           Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005).

       9
           Id. (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993) (per curiam)).

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as ordered.10 All but one of the factors Edemeka relies on to support her motion
to reopen are conditions that have arisen as a result of her continued unlawful
stay in the United States.11 Thus, the IJ’s denial of her motion to reopen the
proceedings was not arbitrary, capricious, or utterly without foundation in the
evidence.
       Edemeka also challenges the refusal of the IJ and the BIA to reopen her
removal proceedings sua sponte. The relevant regulatory provisions vest the IJ 12
and the BIA 13 with complete, unfettered discretion when determining whether
to reopen a case on their own motion.14 Because “‘review is not to be had if the
statute is drawn so that a court would have no meaningful standard against
which to judge the agency’s exercise of discretion,’”15 we lack jurisdiction to
review the refusal of the IJ and the BIA to exercise sua sponte their general
authority to reopen immigration proceedings.16
       Because none of Edemeka’s challenges to the BIA’s decision gives us
ground to set that decision aside, her petition for review is DENIED.


       10
           See I.N.S. v. Rios-Pineda, 471 U.S. 444, 450–51 (1985) (confirming the BIA’s
authority to consider prior acts of dishonesty, violations of the immigration laws, and the
failure to comply with a grant of voluntary departure when determining whether to grant or
deny a motion to reopen).
       11
          See id. at 448 (affirming the BIA’s decision to disregard facts allegedly weighing in
favor of granting a motion to reopen where those facts were only available because the
petitioners had wrongfully remained in the United States).
       12
           8 C.F.R. § 1003.23(b) (“An Immigration Judge may upon his or her own motion at any
time . . . reopen or reconsider any case in which he or she has made a decision . . . .”).
       13
         8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision.”), invalidated on other grounds by
William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007).
       14
            See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219–20 (5th Cir. 2008).

       15
         Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249 (5th Cir. 2004) (quoting Heckler v.
Chaney, 470 U.S. 821, 830 (1985)).
       16
            Ramos-Bonilla, 543 F.3d at 220; Enriquez-Alvardo, 371 F.3d at 250.

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