Luntungan v. Gonzales , 216 F. App'x 815 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
FR AN K Y LU N TU N G A N,
Petitioner,
v. No. 05-9604
(No. A95-554-880)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.
Franky Luntungan petitions for review of an order issued by the Board of
Immigration Appeals (BIA) denying his motion to reopen. Finding no abuse of
discretion, we affirm the BIA’s decision.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
M r. Luntungan is a native and citizen of Indonesia. He entered the United
States in July 1995 with a nonimmigrant visitor visa that entitled him to remain in
the United States until January 1996. He overstayed his visa and the Immigration
and N aturalization Service issued him a Notice to Appear in April 2003. He
conceded that he was removable as charged and applied for asylum and
withholding of removal. On M arch 19, 2004, after a hearing on M r. Luntungan’s
application (at which he was accompanied by Elizabeth Coker, a nonattorney
“accredited representative,” Admin. R. at 20), an immigration judge (IJ) issued an
oral decision denying the relief sought but granting M r. Luntungan voluntary
departure. M r. Luntungan, through M s. Coker, appealed the IJ’s decision to the
BIA, but the BIA, on June 10, 2005, affirmed the IJ’s decision and dismissed
M r. Luntungan’s appeal. On September 8, 2005, M r. Luntungan, through a new
representative, attorney David Senger, filed a motion to reopen asserting that
M s. Coker provided M r. Luntungan ineffective assistance of counsel. On
November 22, 2005, the BIA denied M r. Luntungan’s m otion to reopen. This
timely petition for review followed.
Discussion
Portions of M r. Luntungan’s brief challenge the BIA’s June 10 order
affirming the IJ’s decision. W e lack jurisdiction to review the BIA’s June 10
decision because M r. Luntungan did not file a timely petition for review from that
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decision as required by 8 U.S.C. § 1252(b)(1). See Infanzon v. Ashcroft, 386 F.3d
1359, 1361 (10th Cir. 2004); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227
(10th Cir. 2003) (per curiam). 1
W e do, however, possess jurisdiction to review the BIA’s denial of
M r. Luntungan’s motion to reopen. Infanzon, 386 F.3d at 1361-62. W e review
the BIA ’s denial of the motion for an abuse of discretion. Id. at 1362. “W e will
reverse only if the BIA’s ‘decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only
summary or conclusory statements.’” M ahamat v. Gonzales, 430 F.3d 1281, 1283
(10th Cir. 2005) (quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)).
In his motion to reopen and in his petition for review, M r. Luntungan
asserts: (1) the brief M s. Coker filed with the BIA challenging the IJ’s decision
was too short, “contained grammatical errors,” and could have “more
advantageously presented” his arguments, Pet’r Br. at 23; and (2) M s. Coker
failed to notify him that the BIA had affirmed the IJ’s decision and that he had
only 30 days from the date of the BIA ’s affirmance to file a petition for review.
The BIA denied M r. Luntungan’s m otion to reopen because he failed to
comply with the procedural requirements for asserting a claim of ineffective
assistance of counsel as set forth in In re Lozada, 19 I. & N. Dec. 637, 639
1
On August 5, 2005, M r. Luntungan filed a petition for review of the
June 10 decision. W e dismissed it as untimely. Luntungan v. Gonzales,
No. 05-9567 (10th Cir. Dec. 23, 2005).
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(BIA 1988), 2 and because he failed to “demonstrate that he suffered prejudice as
a result of his representative’s ineffectiveness,” Supp. Admin. R. at 2. See
Lozada, 19 I. & N. Dec. at 638 (requiring the aggrieved person to demonstrate
“he was prejudiced by his representative’s performance”). The BIA found that,
contrary to Lozada’s procedural requirements, M r. Luntungan’s motion did not
reflect whether M s. Coker had been informed of the allegations against her. See
id. at 639. M r. Luntungan takes issue with this finding, asserting that the record
contains a certificate of mailing indicating that M s. Coker “was sent a copy of the
complaint” against her. Pet’r Br. at 18. Nevertheless, as the BIA properly
observed, “even if [M r. Luntungan] had fully complied with the [procedural]
requirements of Lozada,” he still failed to demonstrate prejudice. Supp. Admin.
R. at 2; see Lozada, 19 I. & N. Dec. at 638; Akinwunmi v. INS, 194 F.3d 1340,
1341 n.2 (10th Cir. 1999) (per curiam) (observing that “an alien must show that
his counsel’s ineffective assistance so prejudiced him that the proceeding was
fundamentally unfair”).
M r. Luntungan counters that he is not required to show prejudice. In
support of this proposition he relies on Sixth Amendment right-to-counsel cases,
2
“Lozada requires the motion to be supported by the aggrieved person’s
affidavit explaining the agreement with former counsel and counsel’s
representations to the person, evidence that former counsel was informed of and
allowed the opportunity to respond to the allegations, and evidence the aggrieved
person filed a complaint with appropriate disciplinary authorities or an
explanation why this was not done.” Infanzon, 386 F.3d at 1361 n.3.
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Roe v. Flores-Ortega, 528 U.S. 470 (2000), and Peguero v. United States,
526 U.S. 23 (1999), w hich are inapplicable to removal proceedings. See
Akinwunmi, 194 F.3d at 1341 n.2 (“[T]here is no Sixth Amendment right to
counsel in a deportation proceeding.”); see also Hernandez v. Reno, 238 F.3d 50,
57 (1st Cir. 2001) (declining to apply Flores-Ortega to “civil deportation
proceedings”). M r. Luntungan also asserts, disregarding Lozada, that “the Board
has not required the respondent to demonstrate actual prejudice from counsel’s
ineffectiveness,” Pet’r Br. at 20. He directs our attention to In re
Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996), and In re Rivera-Claros,
21 I. & N. Dec. 599, 603 n.1 (BIA 1996), aff’d, 122 F.3d 1062 (4th Cir. 1997).
M r. Luntungan’s argument is misplaced. Both Grijalva-Barrera and
Rivera-Claros considered reopening after the entry of an in absentia removal
order, a special category of cases for which “an alien is not required to show
prejudice” to obtain rescission of the order. Grijalva-Barrera, 21 I. & N. Dec. at
473 n.2.
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Conclusion
Having reviewed the briefs, the record, and the applicable law, we conclude
that the BIA did not abuse its discretion in denying M r. Luntungan’s m otion to
reopen. A ccordingly, the B IA ’s order dated November 22, 2005, is AFFIRME D.
Entered for the Court
Harris L Hartz
Circuit Judge
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