Marta MIRANDA-NAVARRETTE, also known as Rosa Maria Sanchez-Bautista; Theresa de Jesus Contreras-Miranda, also known as Gonzalez-Vanessa; Gilberto Contreras-Miranda, Petitioners, v. Alberto R. GONZALES, U.S. Attorney General, Respondent, 158 F. App'x 533

PER CURIAM: Petitioners appeal the order of the Board of Immigration Appeals (BIA) denying their motion to rescind an in absentia order of removal. They assert that they missed the removal hearing due to the ineffective assistance of counsel. Petitioners failed to file the motion to rescind within the 180-day period allowed by

Section 1229a(b)(5)(C)(

i) of Title 8. They assert that the statute of limitations was equitably tolled due to the ineffective assistance of counsel they purportedly received. They also claim that the ineffective assistance of counsel constitutes an “exceptional circumstance” that justifies the rescission of the in absentia order of removal under 8 U.S.C. §§ 1229a(b)(5)(C)(i) & (e)(1). Petitioners have not shown that they would have been eligible for relief from removal if they had attended the hearing. Therefore, they failed to establish that the outcome of their case was prejudiced by the alleged actions of counsel.

Because prejudice must be shown to establish that one was denied the effective assistance of counsel, it is unnecessary to reach the underlying question of whether an alien has a constitutional right to the effective assistance of counsel during removal proceedings. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004). Likewise, it is not necessary to reach the question of whether ineffective assistance of counsel is an “exceptional circumstance” justifying the rescission of an in absentia order of removal. The petition for review is DENIED. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.