Filed: Jun. 25, 2013
Latest Update: Feb. 12, 2020
Summary: 12-1661 Williams v. Holder BIA A074 840 789 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “S
Summary: 12-1661 Williams v. Holder BIA A074 840 789 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SU..
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12-1661
Williams v. Holder
BIA
A074 840 789
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of June, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 SHAWN ONEAL WILLIAMS, AKA SHAWN
15 O’NEAL WILLIAMS,
16 Petitioner,
17
18 v. 12-1661
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Ransford B. McKenzie, Brooklyn, New
26 York.
27
28 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
29 Assistant Attorney General; Shelley
1 R. Goad, Assistant Director; Monica
2 Antoun, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Shawn Oneal Williams, a native and citizen of Jamaica,
12 seeks review of a March 30, 2012, decision of the BIA
13 denying his motion to reopen. See In re Shawn Oneal
14 Williams, No. A074 840 789 (B.I.A. Mar. 30, 2012). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history of this case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
19 Cir. 2006). An alien seeking to reopen proceedings is
20 required to file a motion to reopen no later than 90 days
21 after the date on which the final administrative decision
22 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
23 § 1003.2(c)(2). There is no dispute that Williams’s motion
24 to reopen, filed more than six years after his final order
25 of removal, was untimely.
26
2
1 Williams contends, however, that the time limitation
2 should be tolled because he exercised due diligence in
3 pursuing his claim that the first attorney who represented
4 him in his removal proceedings provided ineffective
5 assistance. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d
6 Cir. 2008) (holding that in order to warrant equitable
7 tolling, alien claiming ineffective assistance of counsel
8 must demonstrate “due diligence in pursuing the case during
9 the period the alien seeks to toll” (internal quotation
10 marks omitted)).
11 Williams is correct that the BIA erred in addressing
12 whether Williams’s second immigration attorney was
13 ineffective, while Williams’s claim was that his first
14 immigration attorney was ineffective. Nonetheless, we
15 decline to remand as remand would be futile. See Alam v.
16 Gonzales,
438 F.3d 184, 187 (2d Cir. 2006) (holding that
17 remand is not required “where there is no realistic
18 possibility that, absent the errors, the IJ or BIA would
19 have reached a different conclusion” (internal quotation
20 marks omitted)). The BIA’s finding that Williams failed to
21 substantially comply with the requirements of Matter of
22 Lozada, 19 I. & N. Dec. 637 (BIA 1988), with respect to his
3
1 second attorney is equally applicable to his claim regarding
2 his first attorney. Although Williams asserts that he tried
3 but failed to contact his first attorney, he offers no
4 explanation of what efforts, if any, he made in that regard,
5 and so has not demonstrated due diligence and has not
6 satisfied the first requirement of Lozada. See id. at 639;
7 Jian Hua Wang v. B.I.A.,
508 F.3d 710, 715 (2d Cir. 2007)
8 (rejecting petitioner’s claim of due diligence where he
9 failed to “establish[] in the written record . . . what
10 measures he took to reopen his case”). Furthermore, in his
11 affidavit in support of his motion to reopen, Williams
12 offered no details regarding his agreement with his first
13 attorney, and did not furnish evidence that he filed a
14 disciplinary charge against the attorney. See Lozada, 19 I.
15 & N. Dec. at 639. Failure to comply with the Lozada
16 requirements is a valid ground for the BIA to deny
17 reopening. See Jian Yun Zheng v. U.S. Dep’t of Justice, 409
18 F.3d 43, 46 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED and the Government’s motion to strike is DENIED as
21 moot. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is
4
1 VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
5
