Awad v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2007
Charles R. Fulbruge III
Clerk
No. 05-61152
Summary Calendar
JAMAL M. AWAD,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 451 734
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jamal M. Awad seeks review of the order of the Board of
Immigration Appeals (BIA) denying his claims for withholding of
removal and relief under the Convention Against Torture (CAT) and
denial of a motion to reopen based on ineffective assistance of
counsel. The petition is denied.
Because Awad did not file a separate petition for review of
the BIA’s July 25, 2005, order affirming the IJ’s denial of
withholding of removal and CAT relief, and because he identified
no factual or legal errors in the IJ’s order in his motion to
*
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this opinion should not be published and is not precedent except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. 05-61152
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reopen, his claims regarding withholding of removal and CAT
relief are not properly before the court. See Stone v. INS, 514
U.S. 386, 394 (1995). Accordingly, we address only Awad’s claims
of ineffective assistance of counsel. We decline the
Government’s invitation to decide whether an alien has a due
process right to counsel in removal proceedings. See Mai v.
Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
We have jurisdiction pursuant to 8 U.S.C. § 1252, as amended
by the REAL ID Act. See id. at 165. We review the BIA’s denial
of a motion to reopen for abuse of discretion. See Ogbemudia v.
INS, 988 F.2d 595, 600 (5th Cir. 1993).
Awad has failed to meet the standard for ineffective
assistance of counsel, which requires that Awad establish both
deficient performance and resulting prejudice. In re Lozada, 19
I. & N. Dec. 637, 638 (BIA) (1988). With respect to Awad’s
contention that his counsel failed to put on evidence that Awad
was either a United States citizen or national, the BIA correctly
determined that Awad had failed to establish that he had
completed the naturalization process. There was no evidence that
the application had been approved, and Awad admitted that he had
not taken a public oath of citizenship, a prerequisite to
naturalization. See 8 U.S.C. § 1448; see also Okafor v.
Gonzales, 456 F.3d 531, 533-34 (5th Cir. 2006). Thus, counsel’s
failure to put on evidence of citizenship or nationality was
neither deficient nor prejudicial.
No. 05-61152
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Awad’s contentions regarding counsel’s failure to request a
private hearing, failure to object that the IJ did not consider a
letter from Amnesty International, and withdrawal from
representation during his appeal likewise fail. Awad offers
nothing more than conclusory assertions that counsel’s actions or
omissions prejudiced him in any way.
For the foregoing reaons, Awad’s petition for review is
denied. His motion for production of his citizenship files is
denied as this court is not the appropriate forum for such a
motion. Awad’s motion for appointment of counsel is denied.
PETITION FOR REVIEW DENIED; MOTION FOR PRODUCTION OF
DOCUMENTS DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.