* Alberto Gonzáles was sworn in as United States Attorney General

on February 3, 2005. We have therefore substituted Attorney

General Gonzáles for John Ashcroft as the respondent. See Fed. R.

Civ. P. 25()(1); Fed. R. App. P. 43(c)(2).

Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1859

VÍCTOR AGUILAR-OSORES,

Petitioner,

v.

ALBERTO GONZÁLEZ,* ATTORNEY GENERAL,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Stephen A. Lagana, with whom Lagana & Associates was on brief,

for petitioner.

Jamie M. Dowd, Attorney, Office of Immigration Litigation,

Civil Division, with whom Peter D. Keisler, Assistant Attorney

General, and David V. Bernal, Assistant Director, were on brief,

for respondent.

April 7, 2005
1 In March 2003, the relevant functions of the INS were

transferred into the new Department of Homeland Security and

reorganized into the Bureau of Immigration and Customs Enforcement

("BICE"). For simplicity, we refer to the agency throughout this

opinion as the INS.

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TORRUELLA, Circuit Judge. Petitioner Víctor AguilarOsores appeals a decision of the Board of Immigration Appeals

("BIA") affirming an Immigration Judge's denial of his motion to

reopen removal proceedings. We affirm.

I. Background

Aguilar-Osores, a native and citizen of Peru, entered the

United States at Miami, Florida, on October 4, 1996, as a

nonimmigrant with authorization to remain in the United States

until January 3, 1997. On June 4, 2001, the Immigration and

Naturalization Service ("INS")1 issued a Notice to Appear, charging

Aguilar-Osores with removability under § 237(a)(1)(B) of the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),

for overstaying his visa.

In written pleadings on November 20, 2002, AguilarOsores, through his counsel John Loscocco ("Loscocco"), admitted

the factual allegations against him, conceded removability, and

requested relief in the form of voluntary departure. The

Immigration Judge granted Aguilar-Osores's request for voluntary

departure until March 20, 2003. Aguilar-Osores failed to depart by

that date, and on August 27, 2003, the Department of Homeland

Security arrested him.
2 Aguilar-Osores also filed a motion for an emergency stay of

deportation. Since the instant appeal involves only the motion to

reopen, we do not discuss any of the facts or proceedings related

to Aguilar-Osores's motion for an emergency stay of deportation.

3 Subject to certain exceptions, an alien must file an application

for asylum "within one year after the date of the alien's arrival

in the United States." 8 U.S.C. § 1158(a)(2)(B). There is no such

deadline for applications for withholding of removal. See 8 C.F.R.

§ 1208.4(a).

-3-

On November 25, 2003, Aguilar-Osores, through new

counsel, filed a motion to reopen2 before the Immigration Judge on

the basis of ineffective assistance of counsel. On December 22,

2003, Aguilar-Osores filed a memorandum of law in support of his

motion to reopen. Aguilar-Osores contended in the memorandum that

the filing deadline for a motion to reopen should not apply to his

case because of Loscocco's ineffective assistance.

Aguilar-Osores stated that, after he received the Notice

to Appear, he met with Loscocco for a consultation. According to

Aguilar-Osores, he specifically asked Loscocco whether threats made

against his life as a result of his work in the anti-terrorist unit

of the Peruvian Police Department made him eligible to apply for

asylum or some other form of relief. Loscocco told him that it was

too late to apply for any type of relief except voluntary departure

because Aguilar-Osores had been in the country for over one year,3

and also suggested that Aguilar-Osores apply to the Diversity Visa

Lottery Program. Loscocco then allegedly told Aguilar-Osores to

attend a November 14, 2001 hearing at the Immigration Court,
4 In order to screen frivolous ineffective assistance of counsel

claims, the BIA requires that a motion to reopen based on

ineffective assistance of counsel be accompanied by the following:

(1) an affidavit from the alien detailing the agreement between the

alien and the attorney; (2) evidence that the alien has informed

his attorney of the ineffective assistance allegations and has

given the attorney an opportunity to respond; (3) evidence that the

alien has filed a complaint with the appropriate disciplinary body

regarding the attorney's alleged conduct or a satisfactory

explanation for not filing such a complaint. See Matter of Lozada,

19 I & N Dec. at 639; Asaba v. Ashcroft, 377 F.3d 9, 11 (1st Cir.

2004).

-4-

request a continuance to seek legal representation, and return to

Loscocco's office. According to Aguilar-Osores, Loscocco indicated

that he would then ask for a second continuance as Aguilar-Osores's

legal representative. Aguilar-Osores stated that he did what

Loscocco told him to do. He also stated that he met with Loscocco

after the November 14, 2001 hearing, and again asked about the

possibility of applying for asylum. Loscocco again told AguilarOsores that it was too late to apply for asylum. Loscocco appeared

with Aguilar-Osores at the November 20, 2002 hearing, where

Aguilar-Osores admitted the charges against him and requested

voluntary departure. After the hearing, Loscocco took a $500.00

cash payment from Aguilar-Osores and gave him a sticky note as a

receipt. Loscocco also mailed Aguilar-Osores a letter reminding

him that he had to depart the United States by March 20, 2003.

In accordance with the requirements set forth in Matter

of Lozada, 19 I & N Dec. 637, 639 (BIA 1988),4 Aguilar-Osores

attached to his December 22, 2003 memorandum in support of
5 According to Loscocco, Aguilar-Osores also claimed to have

visited the United States in 1994, but returned to Peru.

-5-

reopening a signed affidavit and a copy of an ineffective

assistance of counsel complaint addressed to the Massachusetts

Office of Bar Counsel. On January 5, 2004, Aguilar-Osores filed a

motion to supplement his motion to reopen in order to apply for

asylum based on changed circumstances in Peru.

On February 9, 2004, Aguilar-Osores filed a copy of

Loscocco's response to the Office of the Bar Counsel addressing

Aguilar-Osores's allegations. In this response, Loscocco stated

that, although he met with Aguilar-Osores on September 5, 2001,

Aguilar-Osores did not retain him as counsel until the day of his

removal hearing on November 22, 2002, when he paid Loscocco

$500.00. Loscocco denied telling Aguilar-Osores to request a

continuance at his November 14, 2001 hearing to seek legal

representation. Loscocco also denied telling Aguilar-Osores that,

as Aguilar-Osores's legal representative, he would seek a second

continuance. According to Loscocco, he discussed the possibility

of applying for asylum with Aguilar-Osores, but Aguilar-Osores did

not claim to fear persecution, stating instead that he had come to

the United States for economic reasons. Aguilar-Osores did not

mention any threats against him, and stated that he was willing to

return to Peru but hoped to stay in the United States for as long

as possible in order to make money.5 Loscocco explained that
-6-

Aguilar-Osores was likely ineligible for asylum because (1)

Aguilar-Osores had not applied for it within one year of his

arrival in the United States, (2) the two exceptions to the oneyear deadline likely did not apply, and (3) Aguilar-Osores had

returned to Peru in 1994 after an earlier visit to the United

States. He also explained that any claim for withholding of

removal would not be likely to succeed since Aguilar-Osores would

have to satisfy a higher burden of proof than for asylum.

Loscocco stated that he and Aguilar-Osores also discussed

seeking permanent resident status through an alien labor

certification, but that Aguilar-Osores's illegal stay in the United

States barred that possibility. Loscocco also prepared Diversity

Visa Lottery applications for Aguilar-Osores and his wife in the

fall of 2002. Finally, Loscocco stated that, after the

November 20, 2002 hearing, Aguilar-Osores did not respond to his

calls and letter regarding his departure date, and that AguilarOsores never raised the issue of asylum or withholding of removal

after the initial consultation. On February 24, 2004, the

Immigration Judge denied Aguilar-Osores's motion to reopen.

Aguilar-Osores timely appealed to the BIA, which affirmed the

Immigration Judge's decision on June 15, 2004. This appeal

followed.
-7-

II. Discussion

Aguilar-Osores raises three claims: (1) that equitable

tolling should be applied to his motion to reopen because of

ineffective assistance of counsel claim, (2) that the BIA abused

its discretion in denying the motion to reopen so that he could

apply for asylum, and (3) that Aguilar-Osores was denied due

process because he was deprived of the opportunity to seek asylum

and withholding of removal before the Immigration Judge. We deal

with each in turn.

"The abuse of discretion standard governs judicial review

of the denial of a motion to reopen, regardless of the substantive

claim involved." Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir.

2005). We will find an abuse of discretion when "the BIA

misinterprets the law, or acts either arbitrarily or capriciously."

Canaveral Toban v. Ashcroft, 385 F.3d 40, 45 (1st Cir. 2004)

(internal quotation marks and citation omitted).

A. Ineffective Assistance of Counsel and Equitable Tolling

A motion to reopen before the Immigration Court "must be

filed within 90 days of the date of entry of a final administrative

order of removal, deportation, or exclusion, or on or before

September 30, 1996, whichever is later." 8 C.F.R. § 1003.23(b)(1).

The Immigration Judge entered the order for voluntary departure on

November 20, 2002. Aguilar-Osores filed his motion to reopen on

November 25, 2003, well past the ninety-day deadline set forth in
6 Aguilar-Osores's brief appears to argue from the premise that he

had 180 days to file motion to reopen. However, the 180-day time

limit only applies where an order of removal or deportation has

been entered in absentia. See 8 C.F.R. § 1003.23(b)(4)(ii)-(iii).

Aguilar-Osores was present at his hearing on November 20, 2002, and

the ninety-day time limit therefore applies.

7 The requirement to demonstrate prejudices applies "except in the

extreme case." Canaveral Toban, 385 F.3d at 46.

-8-

8 C.F.R. § 1003.23(b)(1).6 Aguilar-Osores does not dispute this

fact, but instead argues that equitable tolling should be applied

to his case. We need not reach this issue, however, because even

if Aguilar-Osores's motion to reopen had been timely, he failed to

establish ineffective assistance of counsel.

An alien claiming ineffective assistance of counsel must

generally demonstrate prejudice, see Canaveral Toban, 385 F.3d at

46,7 which Aguilar-Osores has failed to do in the instant case.

The Immigration Judge, after evaluating Aguilar-Osores's

allegations and the response by Loscocco, stated that "this Court

does not find a valid ineffective assistance of counsel claim."

The Immigration Judge concluded that Loscocco "offered the

respondent [Aguilar-Osores] a comprehensive consultation disclosing

all the potential consequences of filing any form of relief." The

Immigration Judge also found that Aguilar-Osores had come to the

United States to earn money, that Loscocco provided him with

comprehensive and careful advice, and that it was Aguilar-Osores's

"uncoerced decision" to pursue voluntary departure. In other

words, the Immigration Judge found that Aguilar-Osores made a fully
-9-

informed choice to pursue only voluntary departure, given the low

chances for success on an asylum claim and that Aguilar-Osores had

come to the United States for economic reasons.

The BIA affirmed this finding, noting that Aguilar-Osores

"did not establish a prima facie case for reopening as his former

counsel did not provide ineffective assistance." After carefully

reviewing the record, we do not believe that the BIA abused its

discretion in making this finding. We therefore find that AguilarOsores has not shown prejudice and affirm the BIA's decision

regarding ineffective assistance of counsel.

B. Application for Asylum

The ninety-day limit to file a motion to reopen does not

apply "if the basis of the motion is to apply for asylum . . . and

is based on changed country conditions arising in the country of

nationality . . . if such evidence is material and was not

available and could not have been discovered or presented at the

previous proceeding." 8 C.F.R. § 1003.23(b)(4)(i). Aguilar-Osores

argues that the BIA abused its discretion in finding that he failed

to meet the standards set forth in 8 C.F.R. § 1003.23(b)(4)(i). We

disagree.

Aguilar-Osores argues that he presented evidence of the

resurgence of the Shining Path guerilla organization in Peru during

2002 and 2003. Since Aguilar-Osores worked for the anti-terrorist

unit as a policeman in Peru and was involved in thwarting several
8 Aguilar-Osores failed to raise this claim before the Immigration

Judge and BIA. We could therefore find that he has waived this

claim. See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999).

However, we bypass the waiver issue because the claim is obviously

meritless.

-10-

Shining Path operations, he argues that the Shining Path's

resurgence would put him in danger should he return to Peru. As

the BIA noted, the alleged resurgence of the Shining Path began at

least seven months prior to Aguilar-Osores's November 22, 2002

hearing. Accordingly, this evidence was either available or could

have been discovered or presented at the November 22, 2002 hearing.

Aguilar-Osores attempts to circumvent this problem by arguing that

this would have been impossible due to the alleged ineffective

assistance of counsel. However, as we have already noted above,

Loscocco did not provide ineffective assistance. We therefore

agree with the BIA that evidence of the Shining Path's resurgence

was available and could have been presented at Aguilar-Osores's

November 22, 2002 hearing, and find no abuse of discretion in the

BIA's decision regarding Aguilar-Osores's failure to meet the

requirements of 8 C.F.R. § 1003.23(b)(4)(i).

C. Due Process

Finally, Aguilar-Osores argues denial of due process

because, as a result of ineffective assistance of counsel, he was

deprived of the opportunity to seek asylum and withholding of

removal before the Immigration Judge.8 However, since Aguilar-
-11-

Osores has failed to prove ineffective assistance of counsel, see

supra Part II(A), we find no due process violation.

III. Conclusion

For the reasons stated above, the BIA's order is

affirmed.

Affirmed.