Singh v. Gonzales , 162 F. App'x 391 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-60988
Summary Calendar
HARDIAL SINGH,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from the
Board of Immigration Appeals
(A96-146-975)
Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Hardial Singh petitions for review of a Board of Immigration
Appeals’ (BIA) affirmance, without opinion, of an Immigration
Judge’s (IJ) denial of a motion to reopen because: (1) the BIA
used an improper analysis under Matter of Lozada, 19 I&N Dec. 637(BIA 1988), for an ineffective assistance of counsel claim; and (2)
Singh did not authorize his counsel to withdraw his application for
*
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this opinion should not be published and is not precedent except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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relief and did not waive his right to attend the evidentiary
hearing on the merits of his claims.
The BIA’s refusal to reopen proceedings is reviewed under the
very deferential abuse of discretion standard. Lara v. Trominski,
216 F.3d 487, 496 (5th Cir. 2000). This standard applies
irrespective of the alien’s underlying basis for relief. Id.Matter of Lozarda provides three procedural requirements that
an alien must meet for an ineffective assistance of counsel claim:
(1) the alien’s affidavit stating the relevant facts, including the
agreement with counsel regarding the alien’s representation; (2)
evidence that counsel was informed of the allegations and was
allowed to respond, including any response given; and (3) where the
alien alleges counsel violated his legal or ethical
responsibilities, evidence a complaint has been lodged with the
relevant disciplinary authorities or an adequate explanation for
the failure to do so. 19 I&N Dec. 637. Our court adopted these
requirements because they are necessary to “to assess the
substantial number of claims of ineffective assistance of counsel
that come before the [BIA]”. Lara, 216 F.3d at 496 (internal
citation and quotation omitted).
Singh has complied with neither the second nor the third
requirement. While Singh maintains his attorney “did not return
any of [his] new counsel’s messages”, and he could not file a
complaint with the relevant disciplinary authorities because he was
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“unable to locate any family members or friend(s) who had allegedly
spoken with [his] attorney”, Singh has not presented any evidence
that he attempted to contact these individuals.
In sum, the BIA did not abuse its discretion in refusing to
reopen proceedings.
DENIED
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