Olunike Adeaga v. Eric Holder, Jr. , 548 F. App'x 68 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1470
OLUNIKE ADERONKE ADEAGA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 15, 2013 Decided: December 5, 2013
Before KING, WYNN, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Emily Anne Radford, Assistant Director, Craig A.
Newell, Jr., Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olunike Aderonke Adeaga, a native and citizen of the
United Kingdom, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s order denying her motion for reopening based
on ineffective assistance of counsel. We deny the petition for
review.
We review the denial of a motion to reopen for abuse
of discretion. See 8 C.F.R. § 1003.2(a) (2013); Mosere v.
Mukasey, 552 F.3d 397, 400 (4th Cir. 2009). The Board’s “denial
of a motion to reopen is reviewed with extreme deference, given
that motions to reopen are disfavored because every delay works
to the advantage of the deportable alien who wishes merely to
remain in the United States.” Sadhvani v. Holder, 596 F.3d 180,
182 (4th Cir. 2009) (internal quotation marks omitted). We will
reverse the denial of a motion to reopen only if it is
“arbitrary, irrational, or contrary to law.” Mosere, 552 F.3d
at 400 (internal quotation marks omitted).
In raising an ineffective assistance of counsel claim
in immigration proceedings, the alien must (1) provide an
affidavit describing her agreement with counsel; (2) inform
counsel of the allegations and permit counsel an opportunity to
respond, and (3) indicate whether a complaint were filed with
the appropriate disciplinary authorities, and if not, explain
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why not. Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.
1988).
In addition to complying with the Lozada requirements,
an alien must demonstrate that she was prejudiced as a result of
her counsel’s ineffectiveness. Id. at 640 (holding that alien
must also show that she was prejudiced by counsel’s actions);
see also Surganova v. Holder, 612 F.3d 901, 907 (7th Cir. 2010)
(recognizing that the legal standards for ineffective assistance
claims in the immigration context are “in a state of flux” and
noting that, regardless of the standard used, it is still
necessary for aliens “to demonstrate prejudice resulting from
the attorney’s substandard performance”); Debeatham v. Holder,
602 F.3d 481, 485 (2d Cir. 2010).
We require that aliens raising the ineffective
assistance of counsel claims in immigration proceedings show at
least substantial compliance with the Lozada requirements.
Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir. 2006). We will
review an ineffective assistance of counsel claim if the alien
substantially complies with the Lozada requirements, “such that
the BIA could have ascertained the claim was not frivolous and
otherwise asserted to delay deportation.” Id.Under 8 U.S.C. § 1229b(b)(1) (2012), an alien who is
otherwise removable or inadmissible may apply for cancellation
of removal. The Attorney General may grant such relief if the
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alien shows (1) ten years’ physical presence in the United
States immediately preceding the application; (2) that she has
been a person of good moral character during that period;
(3) has not been convicted of certain offenses; and (4) that her
removal would result in an exceptional and extremely unusual
hardship to her parent, spouse or children who are United States
citizens.
We conclude that the Board did not abuse its
discretion in dismissing the appeal. Adeaga failed to show that
she was prejudiced by counsel’s failure to file the application
for cancellation of removal. She did not show that she had the
required years of continuous presence or that her removal to the
United Kingdom would be an exceptional and extremely unusual
hardship to her husband and United States citizen children. We
also note she did not substantially comply with the Lozada
requirements.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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