18-1956
    Eldemerdash v. Barr
                                                                                   BIA
                                                                           A061 905 354
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 9th day of September, two thousand twenty.

    PRESENT:
             SUSAN L. CARNEY,
             MICHAEL H. PARK,
             WILLIAM J. NARDINI,
                  Circuit Judges.
    _____________________________________

    MOHAMED KHALED ELDEMERDASH, AKA
    MOHAMMED ELDEMERDASH, AKA
    MOHAMMED KHALED EL DEMERDASH,
             Petitioner,

                      v.                                         18-1956
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Kareem El Nemr, Esq., Astoria,
                                      NY.

    FOR RESPONDENT:                   Ethan P. Davis, Acting Assistant
                                      Attorney General; Jessica E.
                                      Burns, Senior Litigation Counsel,
                                      Edward C. Durant, Attorney, Office
                                      of Immigration Litigation, United
                                     States Department of Justice,
                                     Washington, DC.

       UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

       Petitioner     Mohamed    Khaled       Eldemerdash,          a    native   and

citizen of Egypt, seeks review of a June 14, 2018 decision of

the BIA denying his motion to reopen.                In re Mohamed Khaled

Eldemerdash, No. 061 905 354 (B.I.A. June 14, 2018).                               We

assume the parties’ familiarity with the underlying facts and

procedural history.

       Because Eldemerdash timely petitioned for review only of

the BIA’s June 2018 decision denying his motion to reopen,

our review is limited to that decision, and we may not

consider     the     agency’s     underlying       decision             denying   his

petition     to    remove      the      conditions       on    his        residence.

See Ke Zhen Zhao v. U.S. Dep’t of Justice, 

, 89-–

90     (2d    Cir.      2001).           We     review        the        denial    of

a motion to reopen for abuse of discretion.                         See Jian Hui

Shao    v.   Mukasey,    

,    168-69       (2d       Cir.   2008).

“A motion to reopen proceedings shall not be granted unless

it appears to the Board that evidence sought to be offered is
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material and was not available and could not have been

discovered or presented at the former hearing.”                8 C.F.R.

§ 1003.2(c)(1); Norani v. Gonzales, 

, 294 (2d

Cir.    2006)   (“[I]n   reviewing       the   BIA’s   determination   of

whether previously unavailable evidence supported [a] motion

to reopen, we must inquire whether the evidence could have

been presented at the hearing before the IJ.”).

       The BIA did not err in determining that Eldemerdash

failed to establish that the evidence he submitted with his

motion to reopen was previously unavailable.              Eldemerdash’s

documents consisted of a log of calls between himself and his

former wife in 2009, emails between himself and his former

wife from 2009 to 2010, a 2013 divorce decree, his former

wife’s 2015 death certificate, and documents showing he lived

in North Carolina—where his former wife had lived—in 2011.

All of this evidence predated his 2016 hearing and he conceded

in his motion to reopen that the evidence was available, but

that his previous attorney had failed to submit it.              To the

extent he argues that the failure to present the evidence

earlier should be excused because of ineffective assistance

of counsel, he forfeited that argument by failing to make any

effort to comply with the procedural requirements for an

                                     3
ineffective assistance claim set forth in Matter of Lozada,

19 I. & N. Dec. 637 (B.I.A. 1988).           See Jian Yun Zheng v.

U.S. Dep’t of Justice, 

, 47 (2d Cir. 2005) (“[A]n

alien who has failed to comply substantially with the Lozada

requirements in [his] motion to reopen before the BIA forfeits

[his]   ineffective   assistance      of   counsel    claim     in   this

Court.”).     Eldemerdash’s failure to present new, previously

unavailable evidence is dispositive, and we do not reach the

BIA’s alternative discussion of his prima facie eligibility

for a waiver of the joint petition requirement.               See INS v.

Abudu, 

, 104–05 (1988) (listing three independent

grounds for denial of a motion to reopen: failure to show

prima facie eligibility for relief; failure to present new,

previously    unavailable    evidence,     and   in   cases    involving

discretionary relief, a failure to show relief is warranted

as matter of discretion); INS v. Bagamasbad, 

, 25

(1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is

unnecessary    to   the     results   they   reach.”).          Finally,

Eldemerdash did not exhaust his argument that his divorce was

not valid for immigration purposes or show how, absent a

divorce, he met the requirements to remove the conditions on

                                  4
his   status.     See   Lin Zhong v.   U.S.   Dep’t   of   Justice,

, 122–23 (2d Cir. 2007) (holding that we are

generally limited to review of issues raised before the

agency).

      For the foregoing reasons, the petition for review is

DENIED.    All pending motions and applications are DENIED and

stays VACATED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe,
                              Clerk of Court




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