Case: 16-60630      Document: 00514523537         Page: 1    Date Filed: 06/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 16-60630
                                                                               Fifth Circuit


                                  Summary Calendar
                                                                             FILED
                                                                         June 21, 2018
                                                                        Lyle W. Cayce
JIANXIN ZHENG,                                                               Clerk

                                                 Petitioner,

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                 Respondent.


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A089 997 208


Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       After he failed to appear for his removal hearing, an immigration judge
(IJ) found petitioner Jianxin Zheng, a native and citizen of China, removable
on the grounds that he had overstayed his visa and had not obtained
permission to remain in the United States.                   Because Zheng received
constructive notice of the hearing when notice was mailed to counsel, see 8
C.F.R. § 292.5(a), the IJ ordered Zheng removed to China and entered an in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-60630

absentia order so stating, see 8 U.S.C. § 1229a(b)(5)(A). Zheng now petitions
for review of two orders of the Board of Immigration Appeals (BIA). The first
order (1) dismissed the appeal of the denial of his untimely motion to reopen
his immigration proceedings to rescind the in absentia removal order and (2)
dismissed his motion to reconsider that denial. The second order denied his
motion to reconsider the dismissal of his appeal.
      In all relevant proceedings and pleadings, including this one, Zheng has
asserted that he should have received personal notice of the removal hearing,
that his counsel of record and another retained attorney were ineffective for
failing to notify him of the removal hearing, and that his failure to abide by the
BIA’s procedural requirements for establishing that counsel was ineffective
when a motion to reopen is filed should be excused. The BIA rejected those
arguments.
      Motions to reopen immigration proceedings and for reconsideration are
disfavored and reviewed under a highly deferential abuse of discretion
standard. Lara v. Trominski, 216 F.3d 487, 496-97, 499 n.12 (5th Cir. 2000).
We will affirm the BIA’s decision to deny either type of motion if it is not
capricious, racially invidious, without evidentiary foundation, or arbitrary.
Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005).
      The BIA did not abuse its discretion when it found that the notice of the
removal hearing provided to Zheng’s counsel of record was legally sufficient.
See § 292.5(a); Men Ken Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir. 1982).
Because Zheng received constructive notice of the hearing when notice was
provided to his counsel, he had 180 days to file a motion to reopen his
immigration proceedings. See 8 U.S.C. § 1229a(b)(5)(C)(i), (ii). He failed to do
so. Thus, his motion to reopen was untimely.




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                                   No. 16-60630

      An alien who claims that counsel’s ineffectiveness constitutes an
exceptional circumstance excusing the untimeliness of his motion to reopen
must provide his own affidavit attesting to the facts, including a statement
setting forth the terms of the attorney-client agreement; evidence that counsel
was informed of the ineffectiveness allegations and allowed an opportunity to
respond; and evidence as to whether a complaint had been filed with the
appropriate disciplinary authorities. Matter of Lozada, 19 I & N Dec. 638, 639
(BIA 1988); see also Lara, 216 F.3d at 496 (discussing Lozada requirements).
As in his immigration proceedings, Zheng acknowledges that he did not comply
with the Lozada requirements when he filed his motion to reopen. This court
has held that the BIA may require strict compliance with the Lozada
requirements, Hernandez-Ortez v. Holder, 741 F.3d 644, 647-48 (5th Cir. 2014),
and has specifically rejected the argument that the Lozada requirement to file
a bar complaint should be waived where an alien alleges that counsel’s error
or omission was “inadvertent,” as Zheng has alleged, see Lara, 216 F.3d at 498-
99 (internal quotation marks omitted). Accordingly, the BIA did not abuse its
discretion when it determined that Zheng’s failure to comply with the Lozada
requirements when he filed his motion to reopen defeated his claim of
ineffective assistance of counsel, which was the only basis he had for reopening
given his notice of the hearing.
      The BIA also did not abuse its discretion when it dismissed Zheng’s
appeal of the denial of his motion for reconsideration. Zheng failed to identify
an error or defect in the decision denying his motion to reopen, or otherwise
demonstrate that reconsideration was warranted, Zhao, 404 F.3d at 301, and
evidence of his belated compliance with the Lozada requirements was not
evidence that the BIA could consider on a motion for reconsideration, see
Ghassan v. INS, 972 F.2d, 631, 638 (5th Cir. 1992).



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                                No. 16-60630

      We construe Zheng’s pro se arguments that this court should sua sponte
reopen his immigration proceedings and grant him discretionary relief as a
challenge to the BIA’s refusal to sua sponte reopen his immigration
proceedings.   We lack jurisdiction over challenges to the BIA’s failure to
exercise its sua sponte authority to reopen because the decision is wholly
discretionary. Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010). Thus,
this claim must be dismissed.
      Zheng fails to address the BIA’s finding that he failed to establish a
sufficient change in country conditions to warrant reopening his immigration
proceedings on that basis or the BIA’s denial of his motion for reconsideration
of the order dismissing his appeal. Those claims are abandoned and, therefore,
waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Zheng’s petition for review of the BIA’s order dismissing his appeal of
the denial of his motion to reopen and for reconsideration is DENIED IN PART
and DISMISSED IN PART. His petition for review of the BIA’s order denying
his motion to reconsider the dismissal of his appeal is DENIED.




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