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

NaturalizationService initiated deportation proceedings against Petitioner as a result ofhis conviction

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

intention to seek § 212(c) relief.

At the final deportation 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 judge's order alleging that had he been effectively represented by

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

file the application was not 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

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

Petitioner appeals the Board's decision.

DISCUSSION
 

1When 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. 

 

2Because 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 claimofineffective assistance of counsel at a deportation proceeding, an alien

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

the ineffective representation. See, Ogbemudia v. INS, 988 F.2d 595, 598 (5thCir.1993). Assuming

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

representation, Petitioner's claimmust be denied because, asfound by the Board, he did notshow 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 relieffromdeportation under § 212(c). See,

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

merited the grant of relief.1 Furthermore, we can not consider Petitioner's attempts to do so on

appeal because our review is limited to the administrative record. See 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 considered. 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 grounds for the

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

147 (5th Cir.1988); Fleurinor v. INS, 585 F.2d 129, 133 (5th Cir.1978). Petitioner has not satisfied
the second prong ofthe § 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.