* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 12, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-60864

Summary Calendar

CANDIDO ALBERTO RUBIO,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review from an Order of the

Board of Immigration Appeals

(A91-828-903)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

Candido Alberto Rubio has filed a petition for review of a

final order of the Board of Immigration Appeals (BIA) denying his

motion to reopen hi s removal proceeding. Rubio’s underlying

request for cancellation of removal was denied because it was

determined that he had not established five years o f lawful,

continuous, physical presence in the United States. See 8 U.S.C.

§ 1229b(a).2

“The BIA’s factual find i ngs are reviewed for substantial

evidenc e; rulings of law, d e novo

, deferring to the BIA’s

interpretation of the immigration statute s.” M ireles-Valdez v.

Ashcroft

, 349 F.3d 213, 215 (5th Cir. 2003) (internal citation

omitted). Denial of a motion to reopen in an immigration

proceeding is reviewed only for abuse of discretion. I NS v.

Doherty , 502 U.S. 314, 323 (1992).

“Congress explicitl y granted federal courts the power to

review ‘final order[s] of removal’ in [8 U.S.C.] § 1252(a)(1), and

‘implicit in this jurisdictional grant is the authority to review

orders denying motions to reopen any such final order’.” A ssaad v.

Ashcroft

, 378 F.3d 471, 474 (5th Cir. 2004) (quoting Patel v.

United States Attorney General

, 334 F.3d 1259, 1261 (11th Cir.

2003)). However, “where a final order of removal is shielded from

judicial review by a provision in [8 U.S.C.] § 1252(a)(2), so, too,

is [the BIA’s] refusal to reopen that order”. I d. (internal

quotations omitted). Because the denial of Rubio’s cancellation of

removal request was based on a determination that he was not

statutorily eligible for that relief, we would have jurisdiction to

review that determination if it were currently before us.

Mireles-Valdez

, 349 F.3d at 216-17 (interpreting § 1252(a)(2)(B)).

Given that fact, we have jurisdiction to review the denial of

Rubio’s motion to reopen.3

Rubio’s motion to reopen was based on his assertion that he

received inef f ective assistance of counsel during his removal

proceedings. Rubio contended that, absent counsel’s poor

performance, he would have been found statutorily eligible for

cancellation of removal and would have been granted that relief.

Based on our review of the record, there was subs tantial

evidence to support the BIA’s finding that Rubio did not enter this

country until after 1 January 1982 and, therefore, was not properly

admitted for lawful residency. S ee 8 U.S.C. § 1255a(2).

Accordingly, Rubio did not meet the statutory req uirements for

cancellation of removal under 8 U.S.C. § 1229b(a). Because Rubio

has not shown that his former counsel’s actions denied him a fair

hearing or due process, his ineffective assistance of counsel claim

fails. S ee Matter of Lozada

, 19 I & N Dec . 637, 638 (BIA 1988).

Therefore, the BIA did not abuse its discretion in denying the

motion to reopen.

DENIED