Bermudes-Cardenas v. Gonzales , 166 F. App'x 146 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-60574
Summary Calendar
MANUEL BERMUDES-CARDENAS, also known as
Manuel Cardenas-Bermudez,
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. A35 472 968
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Manuel Bermudes-Cardenas has petitioned for review of a
final order of the Board of Immigration Appeals (BIA) denying his
second motion to reopen his removal proceeding. Bermudes-
Cardenas conceded his removability under 8 U.S.C
§ 1227(a)(2)(A)(iii) based on his 1991 Texas conviction of
indecency with a child. The immigration judge (IJ) ordered
Bermudes-Cardenas removed after finding that he had waived 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this opinion should not be published and is not precedent except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. 04-60574
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right to file his applications for adjustment of status and
waiver of inadmissibility.
After unsuccessfully appealing to the BIA , Bermudes-
Cardenas filed a motion to reopen his removal proceedings. The
BIA concluded that the motion was untimely under 8 C.F.R.
§ 1003.2(c)(2) and the exception provided in 8 C.F.R.
§ 1003.2(c)(3) did not apply because Bermudes-Cardenas’s removal
was not ordered in absentia. Accordingly, the BIA denied
Bermudes-Cardenas’s motion to reopen.
Bermudes-Cardenas retained new counsel and filed a second
motion to reopen his removal proceedings. He argued that the
limitations period and the numerical limitation of 8 C.F.R.
§ 1003.2(c)(2) should not apply in his case, or should be
equitably tolled, because his first motion to reopen was
allegedly filed without his authorization, and his former counsel
rendered ineffective assistance. The BIA ruled that Bermudes-
Cardenas’s second motion to reopen was both untimely and
numerically barred. Alternatively, the BIA held that, even if it
would consider his motion, Bermudes-Cardenas had not shown that
his first counsel was responsible for causing his applications to
be deemed abandoned, as Bermudes-Cardenas was present when the IJ
set the deadline for filing his applications.
Bermudes-Cardenas now argues that the BIA’s application of
the procedural requirements of 8 C.F.R. § 1003.2(c)(2) was an
abuse of discretion because his first motion was filed without
No. 04-60574
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his authorization. He argues that the limitations period should
have been equitably tolled due to the ineffective assistance
rendered by his first counsel.
We have jurisdiction to hear the legal and constitutional
issues raised in Bermudes-Cardenas’s petition. 8 U.S.C.
§ 1252(a)(2)(D). The denial of a motion to reopen is reviewed
under a “highly deferential abuse of discretion standard.”
Rodriguez v. Ashcroft, 253 F.3d 797, 799 (5th Cir. 2001).
Under 8 C.F.R. § 1003.2(c)(2), subject to the exceptions in
8 C.F.R. § 1003.2(c)(3), a party “may only file one motion to
reopen,” which “must be filed no later than 90 days after the
date on which the final administrative decision was rendered in
the proceeding sought to be reopened.” The exceptions do not
apply here because Bermudes-Cardenas’s removal was not ordered
in absentia. See 8 C.F.R. § 1003.2(c)(2); 8 C.F.R.
§ 1003.23(b)(4)(ii); see also In re R-R-, 20 I. & N. Dec. 547,
549 (BIA 1992). Therefore, the BIA did not abuse its discretion
by denying Bermudes-Cardenas’s second motion to reopen on
procedural grounds.
Bermudes-Cardenas argues, however, that like the limitations
period which some courts have determined may be equitably
tolled,2 the numerical limitation may be equitably surmounted
when an alien pleads ineffective assistance of counsel.
2
E.g., Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.
2005); Socop-Gonzalez v. INS, 272 F.3d 1176, 1181-83,
1193-94 (9th Cir. 2001).
No. 04-60574
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Assuming, without deciding, that the numerical bar can be
surmounted for claims of ineffective assistance of counsel,
Bermudes-Cardenas still cannot prevail. Bermudes-Cardenas has
not complied with the requirements for reopening proceedings
based on a claim of ineffective assistance of counsel, as set out
in In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1998). He has
also not demonstrated prejudice. See id.; De Zavala v. Ashcroft,
385 F.3d 879, 883 (5th Cir. 2004). Because Bermudes-Cardenas has
not demonstrated that the BIA abused its discretion in denying
his second motion to reopen his removal proceedings, his petition
is denied.
The petition for review also requests costs and attorney’s
fees pursuant to the Equal Access to Justice Act (EAJA). See 28
U.S.C. § 2412. An application for attorney’s fees under the EAJA
must be accompanied by proof that the applicant has prevailed.
See 5TH CIR. R. 47.8.2(a). Because we deny the petition for
review, Bermudes-Cardenas does not qualify for an award of
attorney’s fees.
PETITION FOR REVIEW DENIED; REQUEST FOR COSTS AND FEES
DENIED.