Gallegos, et al v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2006
Charles R. Fulbruge III
Clerk
REVISED JANUARY 18, 2006
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-60933
Summary Calendar
SIGFREDO ANTONIO GALLEGOS; IVETTE MITCHELLE
HONORES-WALAQUEZ; JOSE ANTONIO GALLEGOS-HONORES,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A75 346 184)
(A75 346 185)
(A75 346 186)
Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Sigfredo Antonio Gallegos, his wife, Ivette Mitchelle Honores-
Walaquez, and his son, Jose Antonio Gallegos-Honores, seek review
of the Board of Immigration Appeals’ (BIA) denial of their motion
to reconsider the denial of their motion to reopen their appeal.
The claim underlying their motion to reopen is for ineffective
assistance of counsel.

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2
The Gallegoses claim the BIA abused its discretion in
determining that, because they failed to show they filed a
grievance with the Texas Bar Association against their former
attorney, they did not meet the third prong of Matter of Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988). The Gallegoses contend they gave
a reasonable explanation for failing to state whether they filed a
grievance: Rule 2.16 of the Texas Rules of Disciplinary Procedure
states the filing and pendency of a grievance against an attorney
is completely confidential and may not be disclosed to any person
or entity except by court order or if the respondent waives
confidentiality. They also claim the BIA abused its discretion in
holding they failed to show prejudice resulting from their former
counsel’s failure to file a brief in their appeal to the BIA.
The BIA’s denial of a motion to reconsider is reviewed for
abuse of discretion. Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.
2005) (motion to reconsider properly denied where petitioner “did
not identify a change in the law, a misapplication of the law, or
an aspect of the case that the BIA overlooked”).
The Gallegoses did not satisfy their burden of proof before
the BIA to demonstrate a prima facie case that, had the brief been
filed, they would have been entitled to relief from deportation.
Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994).
Therefore, the BIA did not abuse its discretion by determining the
Gallegoses failed to show prejudice. Goonsuwan v. Ashcroft, 252

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3
F.3d 383, 385 n.2 (5th Cir. 2001) (to establish ineffective
assistance of counsel, alien must demonstrate counsel’s performance
resulted in substantial prejudice). Because the BIA did not abuse
its discretion in that determination, we need not decide whether
the BIA abused its discretion in determining the Gallegoses failed
to meet the third prong of Matter of Lozada.
DENIED

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