Miranda-Lores v. I.N.S.
| Decision Date | 09 March 1994 |
| Docket Number | No. 93-5089,MIRANDA-LORE,P,93-5089 |
| Citation | 17 F.3d 84 |
| Parties | Evelioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Malvern C. Burnett, Frances J. Hayden, David Ware & Assoc., Metairie, LA, for petitioner.
Janet Reno, Atty. Gen., U.S. Dept. of Justice, Stewart Deutsch, David V. Bernal, David J. Kline, Asst. Director, Richard M. Evans, Asst. Director, Robert L. Bombough, Director, I.N.S., Washington, DC, John B.Z. Caplinger, DD, I.N.S., Joseph A. Aguilar, New Orleans, LA, for respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before DAVIS, JONES, and DUHE, Circuit Judges.
The Court withdraws the opinion issued in this case dated February 21, 1994, and substitutes the following:
BACKGROUND
Petitioner is a twenty-seven year old Cuban national. He entered the United States in 1970 and was accorded permanent resident status in 1974. In February 1992, the Immigration and Naturalization Service initiated deportation proceedings against Petitioner as a result of his conviction for cocaine distribution. Aided by counsel, Petitioner conceded his deportability and announced his intention to seek Sec. 212(c) relief.
At the final deportation hearing, the immigration judge noted that an application for Sec. 212(c) relief had not been filed. After hearing explanations from both Petitioner's attorney and Petitioner, the judge found that Petitioner had abandoned his claim for relief and ordered him deported to Cuba.
Petitioner appealed the judge's order alleging that had he been effectively represented by counsel, he would have filed a timely application for Sec. 212(c) relief. The Board found that failure to file the application was not due to ineffective assistance of counsel. The Board also found that Petitioner did not comply with the procedural requirements for making an ineffective assistance of counsel claim and did not establish that he was prejudiced
by the failure to file the application. Petitioner appeals the Board's decision.
To prevail on a claim of ineffective assistance of counsel at a deportation proceeding, 1 an alien must show (1) ineffective representation and (2) substantial prejudice, which occurred as a result of the ineffective representation. See, Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.1993). Assuming without deciding that failure to file an application for Sec. 212(c) relief was due to ineffective representation, Petitioner's claim must be denied because, as found by the Board, he did not show that he was prejudiced.
In this case, proving prejudice requires the Petitioner to make a prima facie showing that had the application been filed, he would have been entitled to relief from deportation under Sec. 212(c). See, e.g., Figeroa v. United States INS, 886 F.2d 76, 79 (4th Cir.1989) (); Patel v. United States INS, 803 F.2d 804, 807 (5th Cir.1986) (). In his appeal to the Board, Petitioner did not allege any facts that would have merited the grant of relief. 2 Furthermore, we can not consider Petitioner's attempts to do so on appeal because our review is limited to the administrative record. See Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir.1991). 3
Petitioner requests that we remand this case so that evidence regarding his entitlement to Sec. 212(c) relief may be considered. Under 28 U.S.C. Sec. 2347(c), we may order a remand if (1) the additional evidence sought to be offered is material and (2) there were reasonable grounds for the alien's failure to submit the additional evidence to the agency. Bernal-Garcia v. INS, 852 F.2d 144, 147 (5th Cir.1988); Fleurinor v. INS, 585 F.2d 129, 133 (5th Cir.1978). Petitioner has not satisfied the second prong of the Sec. 2347(c) test; he offers no explanation for his failure to submit this evidence to the Board. Therefor...
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