### 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 , Petitioner s

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

Petition for Review of an Order of the Board of Immigration Appeals BIA No s
. A209 896 952, A209 896 95 0 , A209 896 95 1

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, renewin g her

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 26, 2019 Lyle W. Cayce Clerk Case: 18-60796 Document: 00515214247 Page: 1 Date Filed: 11/26/2019N o. 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 a ssistance 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 whethe r 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 proceedin gs, 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 i s 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 Hernandez

Ortez , 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 sh e 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 Case: 18-60796 Document: 00515214247 Page: 2 Date Filed: 11/26/2019N o. 18

- 60796

3 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 p reviously 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 c ollateral attack, the gross

- miscarriage

- of

- justice standard is inapplicable. See Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019). Accordingly, t he petition for review is DENIED. Case: 18-60796 Document: 00515214247 Page: 3 Date Filed: 11/26/2019