* Alberto Gonzáles was sworn in as United States Attorney General

on February 3, 2005. We have therefore substituted Attorne y 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Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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 

# Un ited Sta tes C our t of A pp eals

For the First C ircuit

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. Ke isle r , Assistant Attorney General, and David V. Bernal , Assistant Director, were o n brief, for respondent.

April 7, 20051 In March 2003, the relevant functions of the INS were

transferredinto the new Department of Homela nd S ecurity and reorganizedinto the Bureau of Immigration and Customs Enforcement ("BICE"). For simplicity, we refer to the agency throughout this opinion as the INS. -2-

TORRUELLA, Circuit Judge . Petitioner Víctor AguilarOsores appeals a decision of the Board of Immigrat ion Appeals ( "BIA") affirming an Immigration Judge's denial of his mot ion t o reopen removal proceedings. We affirm. I. Background Aguilar-Osores, a native and citizen of Peru, entered the UnitedStates at Miami, Florida, on October 4, 1996, as a nonimmigrant wit h au thorization to remain in the United States until January 3, 199 7. On June 4, 2001, the Immigration and Naturalization Service ("INS") 1 issued a Notice to Appear, charging Aguilar-Osores with removabi lity u nder § 237(a)(1)(B) of the Immigration and NationalityAct ("INA"), 8 U.S.C. § 1227(a)(1)(B), for overstaying his visa.

In written p leadings on November 20, 2002, AguilarOsores, through his counsel John Loscocco ("Loscocco"), admitted the factual allegations against him, conceded removability, and

r equ estedrelief 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-Osore s 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 reopen 2 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 asylumor some other form of relief. Loscocco told him that it was too late to applyfor any type of relief except voluntary departure because Aguilar-Osores hadbeen in the countryfor over one year, 3 andalso suggested that Aguilar-Osores applyto the DiversityVisa LotteryProgram. Loscocco then alle gedly told Aguilar-Osores to at tenda November 14, 2001 hearing at the Immigration Cour t ,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 inef fective 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 thepossibility 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 charge s against him and requested voluntarydeparture. After the he aring, Loscocco took a $500.00 cash payment from Aguilar-Osores and gave him a st icky note as a receipt. Lo scocco 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 attach edto his December 22, 2003 memorandum in support of5 According to Loscocco, Aguilar-Oso res also claimed to have

visited the United States in 1994, but returned to Peru. -5- reopening a signed affidav it and a copy of an ineffective assist ance 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 Co unsel addressing Aguilar-Osores's allegatio ns. In this response, Loscocco stated that, although he met with Agui lar -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 N ovembe r 14, 2001 hearing to seek legal representation. Loscocco also denied telling Aguilar-Osores that,

as Aguilar-Osores's legal representative, he would s eek a second continuance. According to Loscocco, he discussed the possibility of applying for asylum with Aguilar-Osores, but Aguilar-Osores did not claimto fear persecution, stating insteadthat he had come to the United States for economi c r easons. Aguilar-Osores did not mention any threats against him, andstated 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 Lo scoc co explained that-6-

Aguilar-Osores was likely ineligible for asy lum because (1) Aguilar-Osores had not applied for it within one year of his arrival in the United States, (2) the two ex cepti ons to the oneyear deadline likely did not apply, and (3) Aguilar-Osores had

r eturnedt o 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 andAguilar-Osores also discussed seeking perman e nt 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 Lot tery a pplications for Aguilar-Osores and his wife in the fall of 2002. Finally, Loscocco stated that, a fter t he November 20, 2002 hearing, Aguilar-Osores did not re spond 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 2 4, 200 4, 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 assi stance of counsel claim, (2) that the BIA abused its disc retion in denying the motion to reopen so that he could applyfor asylum, and (3 ) t hat 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 claiminvolved." Jupiter v. Ashcroft , 396 F.3d487, 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

Amotion to reopen before the Immigration Court "must be filedwithin 90 days of the date of entry of a final administrative order of removal, deportation, or exc lusion, or on or before September 30, 1996, whichever is later." 8 C.F.R. § 1003.23(b)(1). The Immigration Judge enteredthe 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 in6 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 w hich 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 va lidineffective 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 hadcome to the UnitedStates to earn money, that Loscocco provide d h im with comprehensive and careful advice, andthat it was Aguilar-Osores's "uncoerceddecision" 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 a bused its discretion in making this finding. We therefore find that AguilarOsores has not shown prejudice and affirm the BIA's dec ision 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

n ationality. . . if such evidence is material and was n o t 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 BIAabusedits 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 several8 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- Shin ing 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 leas t 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 assista nce. 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-Oso re s'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 deprivedof the opport unity 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 stat ed above, the BIA's order is affirmed. Affirmed .