Acuna v. Ashcroft, (4th Cir. 2004)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-1836 LUIS HERNANDO ACUNA, Petitioner, versus

JOHN ASHCROFT, Respondent. On Petition for Review of an Order of the Board of Immigration

Appeals. (A78-351-169)

Submitted: January 23, 2004 Decided: February 23, 2004

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Ronald D. Richey, Esq. RONALD D. RICHEY & ASSOCIATES, Rockville,

Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney

General, David V. Bernal, Assistant Director, Jamie M. Dowd, Office

of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Luis Hernando Acuna, a native and citizen of Columbia, petitions for review of a final order of the Board of Immigration

Appeals (Board) denying his motion to reopen. Acuna contends that

the Board abused its discretion in denying the motion as untimely

because its untimeliness was caused by ineffective assistance of

counsel. See

Stewart v. INS

, 181 F.3d 587, 595 (4th Cir. 1999) (reviewing the BoardÂ’s denial of motion to reopen for abuse of

discretion). We have reviewed the administr ative record and the BoardÂ’s decision and find no abuse of discretion in the BoardÂ’s

refusal to reopen proceedings where the motion to reopen was untimely. See C.F.R. § 1003.2(a), (c)(2) (2003). In addition, we conclude that the Board did not abuse its discretion in finding

that Acuna failed to establish that he was prejudiced by his

counselÂ’s alleged ineffective assistance. See

Matter of Lozada

, 19 I. & N. Dec. 637 (BIA 1988); Figeroa v. I.N.S. , 886 F.2d 76 (4th Cir. 1989)(“To prevail on a claim of ineffective assistance of

counsel at a deportation proceeding, an alien must show not only

ineffective representation, but also prejudice to him which

occurred as a result of that ineffectiveness”). Accordingly, we

deny the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

- 3 - PETITION DENIED

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