UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 93-5089

Summary Calendar

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EVELIO MIRANDA-LORES,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

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Petition for Review of an Order of

 Immigration and Naturalization Service

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(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 permanent

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, Petitioner 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 and
1 We assume without deciding that an alien has the right to bring

an ineffective assistance of counsel claim in a deportation

proceeding. See 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 the 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

he was prejudiced by the failure to file the application.

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 show (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, he
2 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

counsel, we need not address Petitioner's claim that he received

ineffective assistance.

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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.

1989) (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.2d 804, 807 (5th Cir. 1986)

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

continuance did not result in prejudice where the alien conceded

deportability and did not allege eligibility for discretionary

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

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

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

because our review is limited to the administrative record. See

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 considered.

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 submit the
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additional evidence to the agency. Bernal-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 foregoing reasons, the decision of the Board of

Immigration Appeals is

AFFIRMED.