* 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. 07-61030

Summary Calendar

ESTELA MELANY GOMEZ-MERCADO

Petitioner

v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A28 344 031

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Estela Melany Gomez-Mercado, a citizen and native of El Salvador,

petitions this court for review of the Board of Immigration Appeals’ order

affirming the immigration judge’s denial of her motion to reopen her deportation

proceedings. Gomez did not attend her deportation hearing on December 8, 1987

at which her attorney withdrew her asylum application and requested voluntary

departure. She maintains that she had reasonable cause for not attending the

hearing in that notice was sent to her attorney and not her and she had no

United States Court of Appeals

Fifth Circuit

F I L E D

December 31, 2008

Charles R. Fulbruge III

Clerk
No. 07-61030

1See INS v. Abudu, 485 U.S. 94, 107 (1988); Ogbemudia v. INS, 988 F.2d 595, 600 (5th

Cir. 1993). Motions to reopen are disfavored in deportation proceedings. Abudu, 485 U.S. at

107. The Attorney General has broad discretion to grant or deny such motions, and there is

no statutory provision for reopening deportation proceedings. INS v. Doherty, 502 U.S. 314,

322-24 (1992).

2Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986).

3See Chambers v. Mukasey, 520 F.3d 445, 449 (5th Cir. 2008) (citing 8 C.F.R. § 292.5);

Haryani v. Mukasey, 255 Fed. App’x 864, 866 (5th Cir. 2007) (same); In re Barocia, 19 I. & N.

Dec. 255, 259 (1985). 

2

knowledge of the hearing. The immigration judge and the Board of Immigration

Appeals found that notice to the attorney of record constitutes sufficient notice

to the respondent and that, in this case, a claim of reasonable cause for failure

to appear requires a showing of insufficient assistance of counsel. We review

the BIA’s denial of a motion to reopen for abuse of discretion.1

Gomez contends thatthe BIA required her to meetthe wrong standard for

reopening a hearing at which she failed to appear. Gomez asserts the BIA

required her to show exceptional circumstances in order to excuse her failure to

appear instead of the appropriate standard in effect at the time of her

deportation hearing of not having been given a “reasonable opportunity to be

present” or of showing a “reasonable cause for her absence.”2 Nothing in the

BIA’s decision, however, indicates that it applied the exceptional circumstances

standard. Instead, the BIA ruled that Gomez had proper notice through her

counsel and that the IJ properly construed Gomez’s claim that she did not have

personal knowledge ofthe hearing as a claim that her counsel was ineffective for

not telling her about the hearing. 

Gomez made no showing that she did not have a reasonable opportunity

to attend the hearing. She argues that, even with notice to counsel, her alleged

actual ignorance of the hearing provides reasonable cause for her absence. But

the import ofthe rule that notice to the respondent’s attorney in an immigration

proceeding constitutes notice to the respondent3 means that, as a matter of law,

Gomez was treated as having notice through counsel. It was therefore not an
No. 07-61030

419 I. & N. Dec. 637 (1988). See In re N-K & V-S, 21 I & N. Dec. 879, 880-82 (1997)

(“[W]e conclude that the applicants have satisfied the [ineffective assistance of counsel]

requirements of Matter of Lozada. We find that the record supports their contention that they

were prejudiced by the actions of their former counsel and were prevented from presenting

their case. This was a reasonable cause for their failure to appear, and we therefore grant the

motion to reopen.”).

5See Lara v. Trominski, 216 F.3d 487, 498 (5th Cir. 2000) (listing the Lozada

requirements for supporting a claim of ineffective assistance of counsel as a basis for reopening

immigration proceedings).

3

abuse of discretion for the BIA to decide that Gomez was not denied a reasonable

opportunity to attend the hearing.

Gomez also asserts that she had reasonable cause for failing to attend

based on not knowing about the hearing. However, notice was given to her

attorney, legally satisfying notice to her. The only reason, then, that she did not

know of the hearing was that her attorney did not tell her. Accordingly, the IJ

and the BIA construed Gomez’s reasonable cause claim to require a showing of

ineffective assistance of counsel, as set out in In re Lozada4 as the basis for

reopening immigration proceedings. Gomez, however, did not satisfy the

procedural prerequisites for raising an ineffective assistance of counsel claim.5

Thus,the BIA did not abuse its discretion by rejecting Gomez’s motion to reopen.

Petition for review is DENIED.