Sene v. INS ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SAMBA SENE,
Petitioner,
v.
No. 95-3104
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-382-654)
Submitted: October 29, 1996
Decided: November 19, 1996
Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Randall L. Johnson, Arlington, Virginia, for Petitioner. Frank W.
Hunger, Assistant Attorney General, David V. Bernal, Senior Litiga-
tion Counsel, Stephen W. Funk, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Samba Niasse Sene petitions for review of the decision of the
Board of Immigration Appeals ("Board") denying his motion to
reopen his deportation proceedings. We affirm.
Because Sene, a native and citizen of Senegal, overstayed his visa,
the Immigration and Naturalization Service ("INS") commenced
deportation proceedings. Sene conceded that he was deportable but
sought asylum in this country and a withholding of deportation. After
conducting a hearing on the merits of his claim, an immigration judge
("IJ") denied Sene's application for asylum and withholding of depor-
tation. Sene then filed a notice of appeal with the Board in which his
counsel indicated that a brief would be filed in support of the appeal.
No brief was ever filed.
The Board summarily dismissed the appeal, under 8 C.F.R.
§ 3.1(d)(1-a)(i)(A) (1996), noting that Sene's notice of appeal "of-
fered only a generalized statement of the reason for his appeal" and
therefore it was "insufficient to apprise the Board of which aspects of
the immigration judge's decision he considered incorrect and for what
reason." The dismissal also indicated that although Sene's notice of
appeal indicated a brief would be filed, "no brief or statement was
ever filed" and that "[t]he record reflects that counsel advised the
respondent [Sene] of the requirement and deadline for submitting a
brief." Sene then hired new counsel who filed a motion to reopen the
deportation decision on the grounds that the failure to file a brief was
the result of "gross miscommunication" between Sene and his former
attorney and that prior counsel's errors "seriously impinged" Sene's
right to due process of law. The Board denied the motion to reopen
the deportation proceedings on the ground that Sene failed to comply
with the procedure required when alleging ineffective assistance of
counsel in a motion to reopen. The denial of that motion on proce-
dural grounds is the subject of the petition for review in this court.
2
Neither the correctness of the IJ's decision nor the performance of
Sene's first attorney in attempting to appeal that decision is particu-
larly pertinent to our review. Instead, the issue before us is merely
whether the Board abused its discretion by denying Sene's motion to
reopen. Borokinni v. INS, 974 F.2d 442, 444 (4th Cir.1992). The
record is clear that Sene's motion to reopen did not fully comport
with the Board's procedural requirements.* Moreover, to the extent
that the Board might nonetheless be compelled to grant a noncon-
forming motion on the ground that the movant would otherwise be
denied due process of law, we discern no constitutional violation in
Sene's case.
Deportation proceedings are "purely civil" in nature; thus, constitu-
tional guarantees that apply only to criminal proceedings, such as the
Sixth Amendment right to counsel, do not attach. See INS v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984). Consequently, Sene must
demonstrate that counsel's performance was so deficient as to have
violated his Fifth Amendment right to due process. Figeroa v. INS,
886 F.2d 76, 78-79 (4th Cir. 1989); Lozada v. INS, 857 F.2d 10, 13
(1st Cir. 1988). Counsel's ineffectiveness may amount to a denial of
due process only "if the proceeding was so fundamentally unfair that
the alien was prevented from reasonably presenting his case."
Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir.1986) (cita-
tion and internal quotation marks omitted). Sene must, at the very
least, show that he has been prejudiced as a result of counsel's alleged
ineffectiveness. Figeroa, 886 F.2d at 78. Sene has shown no preju-
dice, as the Board itself has pointed out:
_________________________________________________________________
*See Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988), aff 'd,
Lozada v. INS, 857 F.2d 10 (1st Cir.1988). A motion to reopen alleging
ineffective assistance must be supported by the movant's affidavit: (1)
setting forth the agreement with counsel respecting the actions to be
taken and any representations made by counsel in that regard; (2) aver-
ring that counsel has been informed of the allegations of ineffectiveness,
and has been notified that he or she may respond; and (3) advising
whether a complaint has been filed with the appropriate disciplinary
authorities. If no complaint has been filed, the affidavit must also contain
an explanation of the movant's failure to do so. Sene's motion failed to
comply with at least the last two requirements.
3
The respondent has offered only generalized statements of
the reason for his appeal. Such statements are insufficient to
apprise the Board of which aspects of the immigration
judge's decision he considered incorrect and for what rea-
son. The regulations provide for summary dismissal of an
appeal where the parties concerned fail to specify the rea-
sons for the appeal.
Administrative Record at 20 (citation omitted).
Sene was permitted to present his entire case before the IJ, who,
quite simply, was unpersuaded. In light of the fact that Sene offers no
specific errors in the IJ's decision and that his grounds for appeal do
little more than disagree with the IJ's ultimate decision, he cannot
demonstrate a substantial probability that the IJ's decision would have
been reversed had the Board fully considered the merits of his appeal.
We hold that the Board did not abuse its discretion by denying Sene's
motion to reopen his deportation proceedings. The Board's decision
is affirmed. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4