Galayr v. INS ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60534
Summary Calendar
AMAL S. GALAYR,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74-620-963
--------------------
September 17, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner, Amal S. Galayr, appeals the denial of her motion
to reopen deportation proceedings on the grounds that she
received ineffective assistance of counsel. Galayr, a native of
Somalia, entered the United States utilizing false documentation,
a point which she does not dispute. At her deportation hearing,
Galayr was represented by counsel. She testified that she
belongs to a subclan, the Benadiri, and that the Benadiri are
persecuted by other Somalis and are seen as having supported 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that this opinion should not be published and is not precedent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.
No. 98-60534
-2-
former dictator, Mohamed Siad Barre. The immigration judge found
that Galayr had failed to prove any of the requirements for
asylum. Galayr’s counsel filed a notice of appeal, but, although
a briefing notice was sent to him, no brief was filed. Prior to
the briefing date, Galayr had already sought out new counsel.
Nevertheless, new counsel did not determine the status of
Galayr’s appeal until after the Board of Immigration Appeals
(BIA) had dismissed the appeal for lack of briefing. Galayr
filed a motion to reopen based on ineffective assistance of
counsel, contending that her former counsel’s failure to
communicate with her deprived her of her opportunity to appeal.
The BIA denied the motion on the basis that Galayr had failed to
satisfy the requirements of Matter of Lozada, 19 I & N Dec. 637
(BIA 1988).
Galayr contends that Lozada sets too stringent a standard
for ineffective assistance claims. In particular, she complains
that the procedural requirements imposed by Lozada, which include
filing an affidavit setting forth the alleged deficiencies of
counsel’s performance and filing a complaint against counsel with
the appropriate supervisory authority, are too difficult for an
alien to meet. However, we need not resolve whether Galayr’s
contentions are correct as she has failed to show that her
counsel’s performance prejudiced her.
In order to demonstrate ineffective assistance of counsel in
a deportation proceeding, the petitioner must show ineffective
representation and substantial prejudice resulting therefrom.
See Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994).
No. 98-60534
-3-
Proving prejudice requires the petitioner to make a prima facie
showing that she would have been entitled to relief but for her
counsel’s deficient performance. See id.
Galayr’s testimony that she is a member of the Benadiri clan
and that the Benadiri are persecuted because of their status as
Benadiri was uncorroborated, and the Immigration Judge found
Galayr was not credible. In her motion to reopen, Galayr failed
to present any additional evidence or arguments to support her
claims of persecution. Thus, she has failed to demonstrate that
even if her original counsel had filed a brief, the BIA would
have granted asylum.
Further, we note that Galayr admitted that her original
counsel informed her he would not represent her after he filed
the notice of appeal, and that Galayr contacted new counsel well
before the briefing deadline. Her appeal was not dismissed
summarily until one year after the notice of appeal was filed.
Thus, Galayr’s own lack of diligence forecloses her argument that
she was not afforded due process. See Ogbemudia v. I.N.S., 988
F.2d 595, 599 (5th Cir. 1993).
Galayr’s additional contention that the matter should be
remanded because the administrative record did not contain the
order to report for deportation and the application for stay of
deportation is likewise without merit. Galayr does not discuss
how these documents would support her claim for asylum. Thus,
she has not demonstrated grounds for remand. See Miranda-Lores,
17 F.3d at 85.
No. 98-60534
-4-
Finally, Galayr has filed a motion to supplement the record.
The documents which she seeks to add were not made available
below. As we are limited to review of the administrative record,
the motion to supplement is denied. See id.
For the foregoing reasons, we DENY the Petition for Review,
and DENY the Motion to Supplement Record.
PETITION DENIED. MOTION TO SUPPLEMENT RECORD DENIED.