* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-60534

Summary Calendar

 

AMAL S. GALAYR,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A74-620-963

--------------------

September 17, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Petitioner, Amal S. Galayr, appeals the denial of her motion

to reopen deportation proceedings on the grounds that she

received ineffective assistance of counsel. Galayr, a native of

Somalia, entered the United States utilizing false documentation,

a point which she does not dispute. At her deportation hearing,

Galayr was represented by counsel. She testified that she

belongs to a subclan, the Benadiri, and that the Benadiri are

persecuted by other Somalis and are seen as having supported the 
No. 98-60534

-2-

former dictator, Mohamed Siad Barre. The immigration judge found

that Galayr had failed to prove any of the requirements for

asylum. Galayr’s counsel filed a notice of appeal, but, although

a briefing notice was sent to him, no brief was filed. Prior to

the briefing date, Galayr had already sought out new counsel. 

Nevertheless, new counsel did not determine the status of

Galayr’s appeal until after the Board of Immigration Appeals

(BIA) had dismissed the appeal for lack of briefing. Galayr

filed a motion to reopen based on ineffective assistance of

counsel, contending that her former counsel’s failure to

communicate with her deprived her of her opportunity to appeal. 

The BIA denied the motion on the basis that Galayr had failed to

satisfy the requirements of Matter of Lozada, 19 I & N Dec. 637

(BIA 1988).

Galayr contends that Lozada sets too stringent a standard

for ineffective assistance claims. In particular, she complains

that the procedural requirements imposed by Lozada, which include

filing an affidavit setting forth the alleged deficiencies of

counsel’s performance and filing a complaint against counsel with

the appropriate supervisory authority, are too difficult for an

alien to meet. However, we need not resolve whether Galayr’s

contentions are correct as she has failed to show that her

counsel’s performance prejudiced her. 

In order to demonstrate ineffective assistance of counsel in

a deportation proceeding, the petitioner must show ineffective

representation and substantial prejudice resulting therefrom. 

See Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994). 
No. 98-60534

-3-

Proving prejudice requires the petitioner to make a prima facie

showing that she would have been entitled to relief but for her

counsel’s deficient performance. See id. 

Galayr’s testimony that she is a member of the Benadiri clan

and that the Benadiri are persecuted because of their status as

Benadiri was uncorroborated, and the Immigration Judge found

Galayr was not credible. In her motion to reopen, Galayr failed

to present any additional evidence or arguments to support her

claims of persecution. Thus, she has failed to demonstrate that

even if her original counsel had filed a brief, the BIA would

have granted asylum.

Further, we note that Galayr admitted that her original

counsel informed her he would not represent her after he filed

the notice of appeal, and that Galayr contacted new counsel well

before the briefing deadline. Her appeal was not dismissed

summarily until one year after the notice of appeal was filed. 

Thus, Galayr’s own lack of diligence forecloses her argument that

she was not afforded due process. See Ogbemudia v. I.N.S., 988

F.2d 595, 599 (5th Cir. 1993).

Galayr’s additional contention that the matter should be

remanded because the administrative record did not contain the

order to report for deportation and the application for stay of

deportation is likewise without merit. Galayr does not discuss

how these documents would support her claim for asylum. Thus,

she has not demonstrated grounds for remand. See Miranda-Lores,

17 F.3d at 85. 
No. 98-60534

-4-

Finally, Galayr has filed a motion to supplement the record. 

The documents which she seeks to add were not made available

below. As we are limited to review of the administrative record,

the motion to supplement is denied. See id.

For the foregoing reasons, we DENY the Petition for Review,

and DENY the Motion to Supplement Record.

PETITION DENIED. MOTION TO SUPPLEMENT RECORD DENIED.