IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60953

Summary Calendar

JULIE ADIAHA EDEMEKA,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A028 890 826

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

Julie Adiaha Edemeka, a native and citizen of Nigeria, petitions this court

for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing

her appeal from an immigration judge’s (“IJ”) denial of her motion to reopen her

removal proceedings. She challenges the IJ’s decision to deny her motion, and

she challenges the refusal of the IJ and the BIA to reopen the proceedings sua

sponte. Finding both challenges to be without merit, we deny Edemeka’s petition

for review.

United States Court of Appeals

Fifth Circuit

F I L E D

April 11, 2011

Lyle W. Cayce

Clerk

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.

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Edemeka moved to reopen her removal proceedings on the ground that she

had received ineffective assistance of counsel. Edemeka challenges the IJ’s

denial of her motion on three grounds. First, she argues that the IJ retroactively

applied the wrong legal standard to her ineffective-assistance-of counsel claim.

Second, she argues that her motion should have been granted because she

established ineffective assistance of counsel under the standard announced in

Strickland v. Washington. Finally, she argues that the denial of her motion was

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arbitrary and capricious.

Edemeka’s claim that the IJ applied the wrong legal standard to her

motion is without merit. At the time that Edemeka filed her motion to reopen

in October 2008, claims of ineffective assistance of counsel during immigration

proceedings were adjudicated under the factors laid out in Matter of Lozada.

2

In January 2009, the Lozada factors were superseded in part by Attorney

General Mukasey’s decision in Compean I, which announced a new, more

3

stringent test for determining when a motion to reopen removal proceedings

should be granted because of ineffective assistance of counsel. Less than five

months later, Attorney General Holder issued Compean II, which vacated

Compean I and restored the Lozada standard. Edemeka argues that this “mid4

stream” change in the governing legal standard violated her Due Process rights.

However, at no time was there any uncertainty whether Edemeka’s petition

would be decided under Lozada or Compean I. Compean I expressly stated that

it applied only to motions filed after the date on which it issued: “with respect

to motions filed prior to” the opinion, IJs were instructed that “they should

466 U.S. 668 (1984).

1

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

2

Matter of Compean, 24 I. & N. Dec. 710 (Att’y Gen. 2009). 3

See Matter of Compean, 25 I. & N. Dec. 1, 3 (Att’y Gen. 2009). 

4

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continue to apply the Lozada factors.” Edemeka’s claim that some of the

5

proceedings in the case were “based on Compean” finds no support in the record.

The IJ was correct to rest his July 2009 denial of Edemeka’s motion to reopen on

an application of the Lozada factors.

Edemeka’s argument that her motion should have been granted because

she has established ineffective assistance of counsel under Strickland is likewise

without merit. The Sixth Amendment right to counsel at issue in Strickland

applies only in criminal proceedings. Removal proceedings are civil in nature;

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Strickland has no applicability here.

7

Edemeka also cannot show that the IJ’s denial of her motion to reopen was

arbitrary and capricious in light of all of the circumstances. We review the BIA’s

denial of a motion to reopen removal proceedings “under a highly deferential

abuse-of-discretion standard.” We must uphold a decision of the BIA, “even a

8

decision that we deem in error, so long as it is not capricious, racially invidious,

utterly without foundation in the evidence, or otherwise so irrational that it is

arbitrary rather than the result of any perceptible rational approach.” The

9

record shows that Edemeka was not honest in her dealings with the Department

of Homeland Security; her applications for relief contained incomplete or

inaccurate information. Further, she intentionally failed to voluntarily depart

Compean I, 24 I. & N. Dec. at 741–42. 5

See, e.g., Carty v. Thaler, 583 F.3d 244, 257 (5th Cir. 2009) (“The Sixth Amendment 6

guarantees a criminal accused the right to assistance of counsel . . . .”), cert. denied, 130 S. Ct.

2402 (2010).

See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (“[A]n alien has no Sixth

7

Amendment rightto effective counsel during removal proceedings . . . .”); see also United States

v. Villanueva-Diaz, —F.3d—, No. 10-50176, 2011 WL 693001, at *5 & n.3 (5th Cir. Mar. 1,

2011).

Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005).

8

Id. (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993) (per curiam)).

9

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as ordered. All but one of the factors Edemeka relies on to support her motion

10

to reopen are conditions that have arisen as a result of her continued unlawful

stay in the United States. Thus, the IJ’s denial of her motion to reopen the

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proceedings was not arbitrary, capricious, or utterly without foundation in the

evidence.

Edemeka also challenges the refusal of the IJ and the BIA to reopen her

removal proceedings sua sponte. The relevant regulatory provisions vest the IJ

12

and the BIA with complete, unfettered discretion when determining whether

13

to reopen a case on their own motion. Because “‘review is not to be had if the

14

statute is drawn so that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion,’” we lack jurisdiction to

15

review the refusal of the IJ and the BIA to exercise sua sponte their general

authority to reopen immigration proceedings.

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Because none of Edemeka’s challenges to the BIA’s decision gives us

ground to set that decision aside, her petition for review is DENIED.

See I.N.S. v. Rios-Pineda, 471 U.S. 444, 450–51 (1985) (confirming the BIA’s 10

authority to consider prior acts of dishonesty, violations of the immigration laws, and the

failure to comply with a grant of voluntary departure when determining whether to grant or

deny a motion to reopen).

See id. at 448 (affirming the BIA’s decision to disregard facts allegedly weighing in 11

favor of granting a motion to reopen where those facts were only available because the

petitioners had wrongfully remained in the United States).

8 C.F.R. § 1003.23(b) (“An Immigration Judge may upon his or her own motion at any

12

time . . . reopen or reconsider any case in which he or she has made a decision . . . .”).

8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own

13

motion any case in which it has rendered a decision.”), invalidated on other grounds by

William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007).

See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219–20 (5th Cir. 2008).

14

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249 (5th Cir. 2004) (quoting Heckler v.

15

Chaney, 470 U.S. 821, 830 (1985)).

Ramos-Bonilla, 543 F.3d at 220; Enriquez-Alvardo, 371 F.3d at 250.

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