     Case: 09-60352 Document: 00511443967 Page: 1 Date Filed: 04/13/2011




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

                                                FILED
                                                                            April 13, 2011
                                       No. 09-60352
                                                                            Lyle W. Cayce
                                                                                 Clerk
FRANCISCO CASTREJON BUSTAMANTE,

                                                   Petitioner

v.

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

                                                   Respondent


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A089 935 805


Before GARWOOD, GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
       Petitioner Francisco Castrejon Bustamante (“Castrejon”), a native and
citizen of Mexico, seeks review of an order of the Board of Immigration Appeals
(“BIA”) dismissing an appeal of the denial of his motion to reopen. See In re
Francisco Castrejon-Bustamante a.k.a. Francisco Castrejon, No. A089 935 805
(B.I.A. 2009).     The immigration judge (“IJ”) originally granted Castrejon
voluntary departure. Castrejon filed a motion to reopen, which the IJ denied.
Castrejon appealed to the BIA. At some point before the BIA ruled on the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60352

appeal, Castrejon was removed from the United States. The BIA found that
because Castrejon had been lawfully removed while subject to an order of
removal and while his appeal was pending, his appeal was effectively withdrawn
pursuant to 8 C.F.R. § 1003.4. In the alternative, the BIA held that, even if
Castrejon’s appeal had not been withdrawn, the appeal would be dismissed on
the merits. We agree with the BIA that, whatever the correct interpretation of
§ 1003.4, Castrejon’s petition fails on the merits. Accordingly, we DENY the
petition for review.
      “In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien's
request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)
(citation omitted). We review the BIA’s legal conclusions de novo and its factual
findings “under the substantial-evidence test, meaning that this court may not
overturn the BIA's factual findings unless the evidence compels a contrary
conclusion.” Id. (citation omitted). “Although an alien has no Sixth Amendment
right to effective counsel during removal proceedings, this court has repeatedly
assumed without deciding that an alien’s claim of ineffective assistance may
implicate due process concerns under the Fifth Amendment.” Mai v. Gonzales,
473 F.3d 162, 165 (5th Cir. 2006) (citations omitted). To establish a claim of
ineffective assistance before the BIA, Castrejon must show not only deficient
performance but also that counsel’s actions were prejudicial to the case. Id.
      Castrejon argues that he was denied effective assistance of counsel in his
immigration proceedings because his counsel failed to seek adjustment of status
or cancellation of removal, as well a because his counsel did not to contest
alienage. We disagree. First, there is no proof that Castrejon was eligible for an
adjustment of status. Castrejon conceded before the IJ that he did not satisfy
the procedural requirements of being admitted or paroled after inspection. See
8 U.S.C. § 1255(a). While adjustment of status may be available to some I-130

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                                 No. 09-60352

beneficiaries who entered the United States without inspection, the relevant
petition must have been filed on or before April 30, 2001.           8 U.S.C. §
1255(i)(1)(A)-(B). Castrejon has not shown that he was the beneficiary of a
petition filed before that date. As for cancellation of removal, Castrejon failed
to establish that his removal would result in exceptional and extremely unusual
hardship to his U.S. citizen spouse. See 8 U.S.C. § 1229b(b)(1)(D). Finally,
Castrejon has failed to demonstrate that the decision to concede alienage was
anything but an ordinary tactical decision, made in order to swiftly obtain
voluntary departure and avoid the entry of a removal order. Cf. Mai, 473 F.3d
at 167 (finding that counsel was deficient where there was “no plausible
explanation for how counsel’s strategy resulted in any possible tactical
advantage”).
      Castrejon has raised various additional alleged violations of due process.
Before Castrejon is found to have suffered a denial of due process, however, he
must show that he has been substantially prejudiced. See Bolvito v. Mukasey,
527 F.3d 428, 438 (5th Cir. 2008) (citing Anwar v. INS, 116 F.3d 140, 144 (5th
Cir. 1997) (“Due process challenges to deportation proceedings require an initial
showing of substantial prejudice.”)). Since Castrejon has not shown that the
alleged violations resulted in the denial of any form of relief to which he was
entitled, the BIA did not abuse its discretion in finding that Castrejon did not
demonstrate that he suffered a denial of due process.
      Based on the foregoing, the petition for review is hereby DENIED.




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