United States Court of Appeals,

Fifth Circuit.

No. 93-5089

Summary Calendar.

Evelio MIRANDA-LORES, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Feb. 21, 1994.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

BACKGROUND

Petitioner is a twenty-seven year old Cuban national. He entered the United States in 1970

and was accorded permanent resident status in 1974. In February 1992, the Immigration and

Naturalization Service initiated deportati on proceedings against Petitioner as a result of his conviction

for cocaine distribution. Aided by counsel, Petitioner conceded his deportability and announced his

intention to seek § 212(c) relief.

At the final deportati on hearing, the immigration judge noted that an application for § 212(c)

relief had not been filed. After hearing explanations from both Petitioner's attorney and Petitioner,

the judge found that Petitioner had abandoned his claim for relief and ordered him deported to Cuba.

Petitioner appealed the ju dge's order alleging that had he been effectively represented by

counsel, he would have filed a t imely application for § 212(c) relief. The Board found that failure to

file the application wa s no t due to ineffective assistance of counsel. The Board also found that

Petitioner did not comply with the procedural requirements for making an ineffective assistance of

co unsel claim and did not establish that he was prejudiced by the failure to file the application.

Petitioner appeals the Board's decision.

DISCUSSION1 When reviewing a § 212(c) application for deportation relief, the Board balances the "adverse

factors evidencing an alien's undesirability as a permanent resident with the social and humane

considerations presented in his behalf." Matter of Marin, 16 I & N Dec. 581, 584 (BIA 1978);

see also Diaz-Resendez v. INS, 960 F.2d 493, 495-96 (5th Cir.1992). Here Petitioner did not

allege, to the Board, any favorable considerations.

2 Because we affirm the Board's finding that Petitioner failed to show that he was prejudiced by

alleged ineffective assistance of counsel, we need not address Petitioner's claim that he received

ineffective assistance. To prevail on a claim of ineffective assistance of counsel at a deportati on proceeding, an alien

must show (1) ineffective representation and (2) substantial prejudice, which occurred as a result of

the ineffective representation. S ee, Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.1993). Assuming

without deciding that failure to file an application for § 212(c) relief was due to ineffecti ve

representation, Petitioner's claim must be denied because, as found by the Board, he did not show that

he was prejudiced.

In this case, proving prejudice requires the Petitioner to make a prima facie showing that had

the application been filed, he would have been entitled to relief from deportati on under § 212(c). S ee,

e.g., Figeroa v. United States INS, 886 F.2d 76, 79 (4th Cir.1989) (holding that ineffective

representation did not result in prejudice because alien could not establish a prima facie showing that

he was entitled to a grant of asylum under 8 U.S.C. § 1158); Patel v. United States INS, 803 F.2d

804, 807 (5th Cir.1986) (finding that immigration judge's refusal to grant a motion for continuance

did not result in

prejudice where the alien conceded deportability and did not allege eligibility for

discretionary relief). In his appeal to the Board, Petitioner did not allege any facts that would have

merit ed t he grant of relief. 1 Furthermore, we can not consider Petitioner's attempts to do so on

appeal because our review is limit ed to the administrative record. S ee Rivera-Cruz v. INS, 948 F.2d

962, 967 (5th Cir.1991). 2

Petitioner requests that we remand this case so that evidence regarding his entitlement to §

212(c) relief may

be co nsidered. Under 28 U.S.C. § 2347(c), we may order a remand if (1) the

additional evidence sought to be offered is material and (2) there were reasonable gro unds for the

alien's failure to submit the additional evidence to the agency. B ernal-Garcia v. INS, 852 F.2d 144,

147 (5th Cir.1988); F

leurinor v. INS, 585 F.2d 129, 133 (5th Cir.1978). Petitioner has not satisfiedthe second prong of the § 2347(c) test; he offers no explanation for his failure to submit this evidence

to the Board. Therefore, Petitioner's request for a remand is denied.

CONCLUSION

For the foregoing reasons, the decision of the Board of Immigration Appeals is

AFFIRMED.