FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 07-11841 & 07-13365

Non-Argument Calendar

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BIA No. A79-468-582

JOSE EFRAIN MENDEZ, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petitions for Review of Decisions of the

Board of Immigration Appeals

_________________________

(July 22, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Jose Efrain Mendez, a native and citizen of Colombia, appeals from the
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Board of Immigration Appeals’ (BIA’s) decisions denying his motion to reopen his

removal proceedings and further denying his motion to reconsider that order. The

BIA, in its denial of his motion to reopen and motion to reconsider, held

(1) Mendez’s motion for reconsideration was numerically barred, (2) Mendez had

failed to produce any evidence that would alter its determination he had not

demonstrated exceptional circumstances so as to excuse the late filing of his

asylum application, and (3) Mendez had failed to meet his burden of proof in

establishing that, but for his attorney’s ineffectiveness, the outcome of his

proceedings would have been different. Both Mendez and the Government assert

several issues on appeal, which we address in turn. After review, we deny

Mendez’s petitions.

I.

The Government contends there is no Fifth Amendment due process right to

effective assistance of counsel in immigration cases, and the failure to receive

relief that is purely discretionary, such as asylum, does not amount to a deprivation

of a liberty interest and, accordingly, does not provide a basis for an ineffective

assistance of counsel claim.

In Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005), a case

where an alien sought relief from removal in the form of asylum, we held “[i]t is

well established in this Circuit that an alien in civil deportation proceedings, while
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not entitled to a Sixth Amendment right to counsel, has the constitutional right

under the Fifth Amendment Due Process Clause to a fundamentally fair hearing to

effective assistance of counsel where counsel has been obtained.” We have further

held that, while “failure to receive relief that is purely discretionary in nature does

not amount to a deprivation of a liberty interest,” Mejia Rodriguez v. Reno, 178

F.3d 1139, 1146 (11th Cir.1999), aliens do have a protected interest in petitioning

for asylum, Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. Unit B

1982) (finding, “in the federal regulations establishing an asylum procedure . . . a

clear intent to grant aliens the right to submit and the opportunity to substantiate

their claim for asylum”). Because the Government’s arguments are foreclosed by

our precedent, we turn to the merits of Mendez’s petitions. 

II.

Mendez asserts the BIA erred when it dismissed his motion for

reconsideration as numerically barred, as this was the first and only motion to

reconsider filed regarding the BIA’s denial of his motion to reopen. The

Government concedes this was error.

Under 8 C.F.R. § 1003.2(b)(2), “[a] party may file only one motion to

reconsider any given decision and may not seek reconsideration of a decision

denying a previous motion to reconsider.” 8 C.F.R. § 1003.2(b)(2). In Calle v.

U.S. Atty. Gen., 504 F.3d 1324, 1328 (11th Cir. 2007), we held: 
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The regulation does not provide that an alien may file

only one motion to reconsider throughout her entire

proceedings. To the contrary, the regulation’s use of the

singular terms “a decision” and “any given decision”

suggests that an alien may file a motion to reconsider as

to each decision by the BIA that an alien is removable.

Therefore, we concluded Calle’s motion to reconsider could not be deemed

numerically barred on the basis of an earlier motion for reconsideration directed at

a different decision. Id. at 1328-29. 

Mendez’s motion to reconsider the BIA’s order denying his motion to

reopen was the first motion to reconsider filed for that particular BIA decision.

Accordingly, the BIA abused its discretion when it denied Mendez’s motion as

numerically barred under § 1003.2(b)(2). However, because the BIA also denied

Mendez’s motion on the merits of his claim, as is discussed below, the BIA’s error

in this regard was harmless. 

III.

Mendez contends the BIA erred as a matter of law in denying his motion to

reopen on the ground he had not established prejudice resulting from ineffective

assistance of counsel on the basis the evidence presented would not alter the

conclusion the allegations did not rise to the level of persecution. He further

asserts the evidence submitted by him in his motion to reopen provided significant

corroborative evidence that demonstrated there was a reasonable likelihood he was
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eligible for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT) had he received proper representation.

 We review both the denial of a motion to reopen a removal order and the

denial of a motion to reconsider for an abuse of discretion. Ali v. U.S. Att’y. Gen.,

443 F.3d 804, 808 (11th Cir. 2006) (motion to reopen); Assa’ad v. U.S. Att’y Gen.,

332 F.3d 1321, 1341 (11th Cir. 2003) (motion to reconsider). Review is “limited

to determining whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.” Ali, 443 F.3d at

808 (quotations omitted). 

A motion to reopen “shall state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be supported by affidavits or other

evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). We have held an alien can move

to reopen his removal order on the basis of ineffective assistance of counsel, as

Mendez did here. See Dakane, 399 F.3d at 1274. 

Motions to reconsider are filed before the immigration officer, court, or the

BIA, for review of claimed errors in the law or facts. See 8 U.S.C. § 1229a(c)(6); 8

C.F.R. § 1003.2(b). “A motion to reconsider shall state the reasons for the motion

by specifying the errors of fact or law in the prior Board decision and shall be

supported by pertinent authority.” 8 C.F.R. 1003.2(b)(1). Here, Mendez filed a

motion to reconsider the BIA’s denial of his motion to reopen, raising the same
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claims on appeal. Thus, to the extent the BIA properly denied his motion to

reopen, it properly denied his motion to reconsider. 

To establish ineffective assistance of counsel in the context of a deportation

hearing, “an alien must establish that his or her counsel’s performance was

deficient to the point that it impinged upon the fundamental fairness of the hearing

such that the alien was unable to reasonably present his or her case.” Dakane, 399

F.3d at 1274 (quotations omitted). In Matter of Lozada, 19 I&N Dec. 637, 639

(BIA 1988), the BIA set out the requirements for establishing an ineffective

assistance of counsel claim in immigration proceedings. A motion based on

ineffective assistance of counsel requires (1) the motion be supported by an

affidavit of the respondent setting forth in detail the agreement that was entered

into with counsel, (2) counsel be informed of the allegations leveled against him

and be given an opportunity to respond, and (3) the motion reflect whether a

complaint has been filed with appropriate disciplinary authorities with respect to

any violation of counsel’s responsibilities, and if not, why not. Id.

We have upheld the Matter of Lozada requirements, and held an alien also

must show prejudice when he advances an ineffective assistance claim. Dakane,

399 F.3d at 1274. “Prejudice exists when the performance of counsel is so

inadequate that there is a reasonable probability that but for the attorney’s error, the

outcome of the proceedings would have been different.” Id. Thus, for Mendez to
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succeed under Dakane, he must establish there is a reasonable probability that, but

for the mistakes of his attorney, the outcome of his original asylum, withholding of

removal, and CAT requests would have been different. See id.

The BIA did not abuse its discretion in denying Mendez’s motion to reopen

or motion to reconsider. Mendez failed to demonstrate that, but for his attorney’s

ineffectiveness, there was a reasonable probability the outcome of the proceeding

would have been different. With regard to the timeliness of his asylum application,

Mendez testified at his hearing that he did not speak to an attorney until after the

one-year filing deadline had passed, thus refuting any claims he raised that the

erroneous advice of attorneys excused his untimely filing. With regard to his

claims for withholding of removal and relief under the CAT, the evidence he

submitted either primarily corroborated his testimony before the Immigration

Judge (IJ) which the BIA had found credible, or was cumulative of evidence

already in the record. Further, Mendez does not explain how the evidence

submitted with his motion to reopen differs from that originally submitted, or how

it would have altered the outcome of his removal proceeding had it been submitted

at that time. Accordingly, he has failed to show the BIA’s denial of his motions

was so “arbitrary or capricious” as to amount to an abuse of discretion.
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IV.

Finally, Mendez asserts the BIA erred in its January 30, 2006, order and

order denying his motion to reconsider when it found he had not suffered past

persecution. We review our subject matter jurisdiction de novo. Ruiz v. Gonzales,

479 F.3d 762, 765 (11th Cir. 2007). To the extent the BIA issues a reviewable,

final order, an alien must file a petition for review of such decision within 30 days

after the date of the final order. 8 U.S.C. § 1252(b)(1). This time limit is

mandatory and jurisdictional, and is not tolled or suspended by the filing of a

motion to reopen with the Board. Dakane, 399 F.3d at 1272 n.3. 

To the extent Mendez’s argument he BIA erred by finding he did not

establish past persecution is an attempt to argue his attorney’s failure to present the

materials in his motion to reopen was prejudicial to his case, as discussed above, he

did not show prejudice. To the extent Mendez attempts to appeal the BIA’s

January 30, 2006, affirmance of the IJ’s removal order, because Mendez did not

timely appeal from that order, and because the 30 day time period to appeal from

that order has expired, we lack jurisdiction to review the BIA’s January 30, 2006,

decision. Accordingly, Mendez’s petitions for review of the BIA’s order denying

his motion to reopen and motion for reconsideration are denied.

PETITIONS DENIED.