IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60796

Summary Calendar

JAEL ROSAURA DE LEON-REYNOSO; NAHOMY YANIRA BAMACA-DE

LEON; CRISTIAN JACOB BAMACA-DE LEON,

Petitioners

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A209 896 952, A209 896 950, A209 896 951

Before BENAVIDES, GRAVES, and HO, Circuit Judges.

PER CURIAM:*

Guatemalan national Jael Rosaura DeLeon-Reynoso petitions this court 

for review of the dismissal by the Board of Immigration Appeals (BIA) of her 

appeal from the order of the Immigration Judge (IJ) finding her and her two 

minor children removable and its denial of her motion to remand. She 

contends that the BIA erred in denying her motion to remand, renewing her 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 26, 2019

Lyle W. Cayce

Clerk

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No. 18-60796

2

claim that her failure to file a timely application for asylum was the result of 

ineffective assistance. DeLeon urges that the BIA erroneously determined that 

she had not complied with the procedural requirements for proceeding with an 

ineffective assistance claim under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 

1988). She further asserts that she was substantially prejudiced because she 

has a valid claim for asylum which the IJ failed to consider.

This court reviews the purely legal question whether DeLeon complied 

with the procedural requirements of Lozada de novo. Hernandez-Ortez 

v. Holder, 741 F.3d 644, 647 (5th Cir. 2014); Shaikh v. Holder, 588 F.3d 861, 

863 (5th Cir. 2009). To support a claim of ineffective assistance during removal 

proceedings, an alien must comply with the procedural requirements set forth 

in Lozada and demonstrate that counsel’s actions resulted in substantial 

prejudice. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).

As the BIA determined, although DeLeon filed an affidavit in support of 

her ineffective-assistance claim, the affidavit is insufficient to satisfy the first 

Lozada requirement because it fails to establish that Rodriguez actually 

entered into an agreement to represent DeLeon or to take any action on her 

behalf. Because DeLeon failed to submit a Lozada-compliant affidavit, the BIA 

did not err when it rejected her ineffective assistance claim. See HernandezOrtez, 741 F.3d at 647-48; see also Lozada, 19 I. & N. Dec. at 639. That being 

so, this court need not consider DeLeon’s argument that her administrative 

complaint was sufficient to comply with the third Lozada requirement or her 

argument that she presented sufficient evidence to establish that she was 

prejudiced by Rodriguez’s erroneous advice.

DeLeon additionally contends that the denial of the opportunity to file 

an asylum application violated her due process rights, depriving her of a 

meaningful opportunity to be heard and constituting a gross miscarriage of 

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No. 18-60796

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justice. However, DeLeon’s purported due-process claim is no more than a 

restatement of her claim that she should be allowed to apply for asylum 

because she received ineffective assistance from Rodriguez, which claim fails 

for the reasons previously stated. 

Inasmuch as DeLeon contends that the BIA’s decision amounts to a gross 

miscarriage of justice, her argument is misplaced. Because the motion to 

remand here involved an attempt to revisit an order in the same proceedings 

rather than a collateral attack, the gross-miscarriage-of-justice standard is 

inapplicable. See Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019).

Accordingly, the petition for review is DENIED.

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