Dixon-Bush v. Gonzales , 211 F. App'x 311 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                December 27, 2006
    Charles R. Fulbruge III
    Clerk
    No. 06-60056
    Summary Calendar
    ALICIA COBAN DIXON-BUSH; TANISHA NICOLE DIXON-BUSH,
    Petitioners,
    versus
    ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
    Respondent.
    --------------------
    Petition for Review of a Decision of
    the Board of Immigration Appeals
    BIA No. A98 120 110
    BIA No. A98 120 111
    --------------------
    Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Alicia Coban Dixon-Bush and her minor daughter Tanisha
    Nicole Dixon-Bush (hereinafter referred to as the petitioners)
    have filed a petition for review of a final order of the Board of
    Immigration Appeals (BIA) affirming the denial of their motion to
    reopen their removal proceeding as untimely.   The petitioners
    were ordered removed in absentia when they failed to appear at
    the immigration hearing.
    *
    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    this opinion should not be published and is not precedent except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. 06-60056
    -2-
    As an initial matter, because the petitioners did not file a
    petition for review from the BIA’s order denying their motion to
    reconsider, we lack jurisdiction to address that denial.     See
    Stone v. INS, 
    514 U.S. 386
    , 394 (1995).
    The decision to reopen proceedings is a discretionary
    decision, and this court applies a highly deferential abuse-of-
    discretion standard when reviewing the BIA’s denial of a motion
    to reopen.   Lara v. Trominski, 
    216 F.3d 487
    , 496 (5th Cir. 2000).
    An in absentia order of removal may be rescinded upon a motion to
    reopen filed within 180 days after the date of the order of
    removal, if the alien demonstrates that the failure to appear was
    because of exceptional circumstances.     8 U.S.C. § 1229a(b)(5)(C).
    Petitioners argue that former counsel’s ineffective
    assistance entitles them to tolling of the period for filing
    their motion to reopen.   Even if we assume without deciding that
    such tolling is available to the petitioners, they still have not
    shown that they are entitled to it.   The record does not show
    that the petitioner filed an appropriate complaint in relation to
    counsel’s alleged deficiencies as required by In re Lozada, 
    19 I. & N. Dec. 637
    , 639 (BIA 1988).   As the petitioners failed to
    comply with the Lozada requirement of filing a complaint against
    counsel, this court should reject their equitable-tolling
    argument on this basis.   See Lara, 
    216 F.3d at 496
    .    Thus, in the
    absence of tolling, the motion to reopen, filed more than 180
    days after the entry of the absentia removal order, was untimely.
    No. 06-60056
    -3-
    Accordingly, the BIA did not abuse its discretion in denying the
    motion.   See Lara, 
    216 F.3d at 496
    .   The petitioners’ petition
    for review is DENIED.
    

Document Info

Docket Number: 06-60056

Citation Numbers: 211 F. App'x 311

Judges: Clement, Dennis, Jolly, Per Curiam

Filed Date: 12/27/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023