UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 93-5089

Summary Calendar

_____________________________________

EVELIO MIRANDA-LORES,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

______________________________________________________

Petition for Review of an Order of

Immigration and Naturalization Service

______________________________________________________ (March 9, 1994)

Before DAVIS, JONES, AND DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

BACKGROUND

Petitioner is a twenty-seven year old Cuban national. He

entered the United States in 1970 and was accorded pe rmanent

resident status in 1974. In February 1992, the Immigration and

Naturalization Service initiated deportation proceedings against

Petitioner as a result of his conviction for cocaine distribution.

Aided by counsel, P etitioner conceded his deportability and

announced his intention to seek § 212(c) relief.

At the final deportation hearing, the immigration judge noted

that an application for § 212(c) relief had not been filed. After

hearing explanations from both Petitioner's attorney and1 We assume without deciding that an alien has the right to bring

an ineffective assistance of counsel claim in a deportation

proceeding. S ee Paul v. INS , 521 F.2d 194, 197-198 (5th Cir.

1986).

2 Petitioner, the judge found that Petitioner had abandoned his claim

for relief and ordered him deported to Cuba.

Petitioner appealed t he judge's order alleging that had he

been effectively represented by counsel, he would have filed a

timely application for § 212(c) relief. The Board found that

failure to file the application was not due to ineffective

assistance of counsel. The Board also found that Petitioner did

not comply with the procedural requirements for making an

ineffective assistance of counsel claim and did not establish that

h e was prejudiced by the failure to file the applic ation.

Petitioner appeals the Board's decision.

DISCUSSION

To prevail on a claim of ineffective assistance of counsel at

a deportation proceeding, 1 an alien must s how (1) ineffective

representation and (2) substantial prejudice, which occurred as a

result of the ineffective representation. See

, Ogbemudia v. INS

,

988 F.2d 595, 598 (5th Cir. 1993). Assuming without deciding that

failure to file an application for § 212(c) relief was due to

ineffective representation, Petitioner's claim must be denied

because, as found by the Board, he did not show that he was

prejudiced.

In this case, proving prejudice requires the Petitioner to

make a prima facie showing that had the application been filed, he2 When reviewing a § 212(c) application for deportation relief,

the Board balances the "adverse factors evidencing an alien's

undesirability as a permanent resident with the social and humane

considerations presented in his behalf." Matter of Marin , 16 I &

N Dec. 581, 584 (BIA 1978); see also Diaz-Resendez v. INS

, 960 F.2d

493 , 495-96 (5th Cir. 1992). Here Petitioner did not allege, to

the Board, any favorable considerations.

3 Because we affirm the Board's finding that Petitioner failed

to show that he was prejudiced by alleged ineffective assistance of

c ounsel, we need not address Petitioner's claim that he recei ved

ineffective assistance.

3 would have been entitled to relief from deportation under § 212(c).

See

, e.g.

, Figeroa v. United States INS

, 886 F.2d 76, 79 (4th Cir.

1 989) (holding that ineffective representation did not result in

prejudice because alien could not establish a prima facie showing

that he was entitled to a grant of asylum under 8 U.S.C. § 1158);

Patel v. United States INS

, 803 F.2 d 804, 807 (5th Cir. 1986)

(finding that immigration judge's re fusal to grant a motion for

continuance did not result in prejudice where the ali en conceded

deporta bility and did not allege eligibility for discretionary

relief). In his appeal to the Board, Petitioner did not allege any

facts th at would have merited the grant of relief. 2 Furthermore,

we can not consider Petitioner's attempts to do so on appeal

becaus e our review is limited to the administrative record. S ee

Rivera-Cruz v. INS , 948 F.2d 962, 967 (5th Cir. 1991). 3

Petitioner requests that we remand this case so that evidence

regarding his entitlement to § 212(c) relief may be co nsidered.

Under 28 U.S.C. § 2347(c), we may order a remand if (1) the

additional evidence sought to be offered is material and (2) there

were reasonable grounds for the alien's failure to sub mit the4

additional evidence to the agency. B ernal-Garcia v. INS

, 852 F.2d

144, 147 (5th Cir. 1988); Fleurinor v. INS

, 585 F.2d 129, 133 (5th

Cir. 1978). Petitioner has not satisfied the second prong of the

§ 2347(c) test; he offers no explanation for his failure to submit

this evidence to the Board. Therefore, Petitioner's request for a

remand is denied.

CONCLUSION

For the foreg oing reasons, the decision of the Board of

Immigration Appeals is

AFFIRMED.