                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-1684
                                   ________________

                            HECTOR PONCE-VERDUZCO,
                                               Petitioner

                                             v.

                              ATTORNEY GENERAL
                           UNITED STATES OF AMERICA,
                                                 Respondent
                                ________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A088-188-397)
                          Immigration Judge: Annie S. Garcy
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on October 3, 2017

     Before: SHWARTZ and ROTH, Circuit Judges and PAPPERT*, District Judge

                              (Opinion filed: July 31, 2018)

                                   ________________

                                      OPINION**
                                   ________________


*
 The Honorable Gerald J. Pappert, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge

       Hector Ponce-Verduzco (Ponce) appeals the order of the Board of Immigration

Appeals (BIA) denying his motion to reopen his immigration proceedings. Because we

conclude that the BIA and Immigration Judge (IJ) did not abuse their discretion in

concluding that Ponce’s former counsel was not ineffective, we will deny the petition for

review.

                                             I.

       Ponce, a citizen of Mexico and former Mexican police officer, entered the United

States in the late 1980s without being admitted or paroled. In January 2009, the

Department of Homeland Security commenced removal proceedings against Ponce.

Ponce filed a Form I-589 Application for Asylum and for Withholding of Removal on the

ground that he would suffer retaliation if deported to Mexico for previously exposing a

fellow police officer’s illegal acts there. But when Ponce went before an IJ for his

individual hearing in 2013, he did not proceed with his asylum application and instead

accepted a grant of voluntary departure.

       Later, in 2014, Ponce—now represented by a new attorney—filed a motion and

supporting certification to reopen his removal proceedings for consideration of a

separately-filed I-589, this one based on his fear of persecution in Mexico due to his

perceived wealth. Ponce argued that his prominence in the Mexican American

community, as well as the increased occurrence of kidnappings of Mexican Americans in

Mexico, constituted material changes that warranted reopening his removal proceeding.



                                             2
         In the motion, Ponce also alleged that his former counsel provided ineffective

assistance. According to Ponce, before his scheduled individual hearing with the IJ, he

informed his former counsel that he wanted to file a new asylum application relating to

his fear of being kidnapped in Mexico due to his perceived wealth. Ponce claims that his

former counsel improperly advised him that he could not raise a new basis for asylum at

his individual hearing and that he should instead agree to voluntary departure. Ponce

accepted this advice and agreed to voluntary departure.

         Prior to filing his motion to reopen, Ponce personally delivered a letter to his

former counsel in which he stated that he considered her advice to be wrong and that he

would be retaining a new attorney. Ponce never submitted a grievance against his former

counsel with disciplinary authorities, believing that she mistakenly provided deficient

advice, but had not engaged in unethical conduct.

         On November 30, 2014, a different IJ denied the motion to reopen. The IJ

concluded that Ponce had not provided evidence that country conditions had changed

after his original hearing and he therefore failed to raise new evidence warranting

reopening.1 The IJ also rejected Ponce’s ineffective assistance of counsel claim,

concluding that Ponce’s sworn testimony indicated that he did not have a fear of

returning to Mexico and “that he well-understood that he had withdrawn his I-589 and

decided to agree to accept voluntary departure . . . and that it was his decision to do so.”2




1
    Ponce does not challenge this aspect of the IJ’s ruling.
2
    A.R. 36, 38-39.
                                                3
       On February 27, 2017, the BIA affirmed the IJ’s denial of Ponce’s motion to

reopen. As an additional ground for denying Ponce’s motion, the BIA added that Ponce

failed to satisfy the procedural requirements mandated by the BIA in Matter of Lozada.3

This appeal followed.

                                            II.

       We have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a)(1). “When,

as here, the BIA affirms an IJ’s decision and adds analysis of its own, we review both the

IJ’s and the BIA’s decisions.”4

       We review the denial of a motion to reopen for abuse of discretion and may

reverse only where the denial is “arbitrary, irrational, or contrary to law.”5 We review

findings of fact related to the motion for substantial evidence.6 Under this standard, the

findings are “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.”7




3
  19 I. & N. Dec. 637 (BIA 1988). Those requirements are that the alien “(1) support the
claim with an affidavit attesting to the relevant facts; (2) inform former counsel of the
allegations and provide counsel with the opportunity to respond (this response should be
submitted with the alien’s pleading asserting ineffective assistance); and (3) state
‘whether a complaint has been filed with appropriate disciplinary authorities regarding
[the allegedly deficient] representation, and if not, why not.’” Fadiga v. Att’y Gen., 488
F.3d 142, 155 (3d Cir. 2007) (quoting Lozada, 19 I. & N. Dec. at 639).
4
  Contreras v. Att’y Gen., 665 F.3d 578, 583 (3d Cir. 2012).
5
  Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
6
  Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
7
  Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (quoting 8 U.S.C. §
1252(b)(4)(B)).
                                             4
       An alien seeking to reopen an immigration proceeding on the basis of ineffective

assistance of counsel must demonstrate that (1) “competent counsel would have acted

otherwise”; and (2) counsel’s poor performance resulted in prejudice.8

       The record supports the conclusion that Ponce’s counsel’s performance was not

deficient. According to Ponce, his counsel advised him against filing a new form I-589

and instead advised him to agree to voluntary departure. We find no support in Ponce’s

argument that a competent attorney would have acted otherwise, especially given the fact

that Ponce had previously filed a conflicting I-589 indicating that he feared going back to

Mexico for different reasons. Moreover, the IJ found that Ponce’s sworn testimony

indicated that he did not fear returning to Mexico and that he accepted voluntary

departure on his own accord. Because we accept these findings, we see no reason to

disturb the IJ’s or BIA’s rulings.9

                                           III.

       For the foregoing reasons, we deny Ponce’s petition for review.




8
  Fadiga, 488 F.3d at 157 (citation omitted).
9
  We need not reach the issue of whether Ponce met the procedural requirements set out
in Lozada.
                                             5
