NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4317

___________

GUNVANT KUMAR BECHARBHA PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-078-121)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 16, 2012

Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: May 23, 2012)

___________

OPINION

___________

PER CURIAM

Gunvant Kumar Becharbha Patel petitions for review of the Board of Immigration 

Appeals’ (BIA or Board) order upholding the Immigration Judge’s (IJ) order denying his 
2

motion to reopen his immigration proceedings. For the reasons that follow, we will deny 

the petition for review. 

I.

Patel is a native and citizen of India who has been in the United States unlawfully 

since 1998. In December 2009, the government charged him with removability pursuant 

to INA § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)] as an alien present without being 

admitted or paroled. On October 27, 2010, Patel, represented by counsel, appeared 

before an Immigration Judge (IJ) and conceded removability as charged. The IJ granted 

him permission to voluntarily depart the country on or before February 24, 2011. 

On November 24, 2010, Patel, represented by new counsel, filed a motion to 

reopen proceedings in the Immigration Court in order to seek asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT). Patel claimed that

he would be persecuted by Hindu extremists if forced to return to India because he is 

considered to be a Muslim supporter. He explained that he did not raise this claim at the 

removal hearing because neither his attorney nor the IJ “asked him about his fear of 

returning back to [India].” (AR000104.) Patel further explained that he was in a “total 

state of confusion” at the hearing because he does not speak English and there was not an 

interpreter present to translate. (AR000105.) 

The government opposed the motion to reopen on the grounds that: (a) to the 

extent that Patel claimed that his former counsel provided ineffective assistance, he had 

failed to comply with the procedural requirements of In re Lozada, 19 I. & N. Dec. 637 
3

(BIA 1988); and (b) he had failed to establish prima facie eligibility for any form of 

relief. The IJ agreed, and, by order entered December 23, 2010, denied the motion to 

reopen. Upon review, the BIA affirmed the IJ’s decision for the reasons stated therein, 

and dismissed the appeal. Patel now seeks review of the BIA’s order. 

II.

We have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a). Because 

“[m]otions to reopen immigration proceedings are viewed with strong disfavor, . . . we 

review the BIA’s decision to deny reopening for abuse of discretion, mindful of the broad 

deference that the Supreme Court would have us afford.” Zheng v. Gonzales, 422 F.3d 

98, 106 (3d Cir. 2005) (internal quotation marks and citation omitted). Under this 

standard, we may reverse the agency’s decision only if it is “arbitrary, irrational, or 

contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). However, we 

review ineffective assistance of counsel claims in immigration proceedings de novo. 

Fadiga v. Att’y Gen.

On appeal, Patel primarily challenges the agency’s determination that he failed to 

comply with

, 488 F.3d 142, 153 (3d Cir. 2007). 

Lozada’s procedural requirements for raising an ineffective assistance of 

counsel claim.1

 In Lozada

 1 To the extent that Patel implies in his brief that he was denied procedural due 

process at the hearing because (a) neither the IJ nor government counsel asked him 

whether he feared returning to India, and (b) there was not an interpreter present, these 

claims lack merit. First, there is no constitutional right to be informed of possible 

, the Board laid out a three-step procedure for establishing 

egregious ineffective assistance that would justify reopening: 
4

A motion based upon a claim of ineffective assistance of counsel should be 

supported by an affidavit . . . includ[ing] a statement that sets forth in detail 

the agreement that was entered into with former counsel with respect to the 

actions to be taken on appeal and what counsel did or did not represent to 

the respondent in this regard. Furthermore, before allegations of ineffective 

assistance of former counsel are presented to the Board, former counsel 

must be informed of the allegations and allowed the opportunity to respond. 

Any subsequent response from counsel, or report of counsel’s failure or 

refusal to respond, should be submitted with the motion. Finally, if it is 

asserted that prior counsel’s handling of the case involved a violation of 

ethical or legal responsibilities, the motion should reflect whether a 

complaint has been filed with appropriate disciplinary authorities regarding 

such representation, and if not, why not.

Lozada, 19 I. & N. Dec. at 639. This Court has held that the Lozada requirements are a 

reasonable exercise of the Board’s discretion. Lu v. Ashcroft

We see no error in the BIA’s determination that Patel failed to comply with the 

procedural requirements set forth in 

, 259 F.3d 127, 132 (3d Cir. 

2001).

Lozada. As the Board explained, Patel’s affidavit 

did not describe the agreement he had entered into with his former attorney, nor did he 

indicate that he had filed a bar complaint or explain his failure to do so. Furthermore, 

although Patel claims that he did notify his former attorney of the allegations against him, 

Patel did not do so until after he submitted—and the IJ rejected—his motion to reopen. 

Patel concedes that he did not strictly comply with the Lozada

 

eligibility for discretionary relief like asylum, and the IJ cannot be faulted for failing to 

advise Patel of potential eligibility for withholding of removal and CAT protection 

because there were no facts in the record to support such claims. See Bonhometre v. 

Gonzales, 414 F.3d 442, 448-49 (3d Cir. 2005). Second, nothing in the record indicates 

that Patel requested, but was denied, an interpreter during his hearing, or that he did not 

understand the IJ’s October 27, 2010 decision.

requirements, but urges us 
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to excuse his non-compliance on the ground that he “substantially complied.” (Brief, at 

p. 19.) We disagree. While we have stated that the Lozada requirements “need not be 

rigidly enforced where their purpose is fully served by other means,” Lu, 259 F.3d at 134 

(internal quotation marks and citation omitted), that is clearly not the case here.

Accordingly, we cannot say that the BIA erred in rejecting Patel’s ineffective assistance 

claim as procedurally deficient under Lozada

Notably, even if we were to determine that Patel substantially complied with 

.

Lozada’s requirements, we would nonetheless conclude that the BIA acted within its 

discretion in denying his motion to reopen because he failed to demonstrate prejudice 

resulting from his former attorney’s alleged ineffectiveness. Specifically, he failed to 

establish prima facie eligibility for asylum, withholding of removal, or protection under 

the CAT. See Fadiga, 488 F.3d at 157. In any event, because Patel does not challenge 

the agency’s determination that he failed to establish prima facie eligibility for the relief 

sought, he has waived appellate review of this issue. See Kost v. Kozakiewicz

III.

, 1 F.3d 

176, 182 (3d Cir. 1993). 

For the foregoing reasons, the petition for review will be denied.