Filed: Dec. 19, 2013
Latest Update: Mar. 02, 2020
Summary: 11-3715 Huang v. Holder BIA A099 183 869 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 “SUMM
Summary: 11-3715 Huang v. Holder BIA A099 183 869 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 “SUMMA..
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11-3715
Huang v. Holder
BIA
A099 183 869
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 19th day of December, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAODAN HUANG,
14 Petitioner,
15
16 v. 11-3715
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Chunyu Jean Wang, Flushing, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Terri J. Scadron,
27 Assistant Director; Richard
28 Zanfardino, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xiaodan Huang, a native and citizen of
6 China, seeks review of an August 24, 2011 decision of the
7 BIA denying her motion to reopen her removal proceedings.
8 In re Xiaodan Huang, No. A099 183 869 (B.I.A. Aug. 24,
9 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered, and is permitted to
17 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),
18 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that
19 Huang’s second motion to reopen, filed nearly two years
20 after the immigration judge’s (“IJ”) order of removal became
21 final, was untimely and number-barred.
Id.
22 Huang contends that the time limitation should be
23 equitably tolled because of her prior counsel’s ineffective
2
1 assistance. See Rashid v. Mukasey, 533 F.3d 127, 130 (2d
2 Cir. 2008). To prevail on a claim of ineffective assistance
3 of counsel, a movant must show that competent counsel would
4 have acted otherwise and that she was prejudiced by her
5 counsel’s performance. See Rabiu v. INS,
41 F.3d 879, 882
6 (2d Cir. 1994); Esposito v. INS,
987 F.2d 108, 111 (2d Cir.
7 1993) (per curiam). As discussed below, the BIA did not
8 abuse its discretion in finding that Huang failed to show
9 she was prejudiced by her counsel’s performance.
10 Huang alleges that she had three representatives, each
11 of whom provided ineffective assistance: (1) “Ms. Wang,” a
12 non-attorney immigration consultant who--allegedly
13 unbeknownst to Huang--filed an application for adjustment of
14 status for Huang based on a fraudulent marriage certificate;
15 (2) Gary Yerman, an attorney who represented Huang in
16 connection with her application for asylum, withholding or
17 removal and CAT relief, and who failed to discover Wang’s
18 fraudulent filings, including the fake marriage certificate,
19 and failed to file an ineffective assistance claim against
20 Wang; and (3) Gonzalo “Jun” Policarpio, a non-attorney
21 immigration consultant, who, among other things, caused
22 Huang to file an untimely motion to reopen and subsequent
3
1 appeal, and neglected to file an ineffective assistance
2 claim against Wang and Yerman. In essence, Huang claims
3 that she was prejudiced by her former counsel’s errors
4 because her application for asylum, withholding of removal,
5 and CAT relief was denied on the basis of the fraudulent
6 marriage certificate.
7 We reject Huang’s claim. First, Huang suffered no
8 prejudice as a result of Wang’s fraudulent filing or
9 Yerman’s failure to discover the fraud. The IJ stated in
10 his 2009 written decision denying Huang’s first motion to
11 reopen that he had denied her applications for relief not
12 because she previously filed an application for adjustment
13 of status based on a fraudulent marriage certificate, but
14 based on his “determin[ation] that [she] had failed to
15 establish eligibility for such relief.” October 14, 2009
16 Order at 2, Petr. Add. 295.
17 Moreover, Huang did not meet her burden of supporting
18 her motion with relevant evidence. See INS v. Abudu, 485
19 U.S. 94, 110 (1988) (analogizing burden faced by alien
20 seeking to reopen removal proceedings to that of criminal
21 defendant moving for new trial). BIA procedures allowed
22 Huang to file a motion for preparation of her transcripts in
4
1 support of her motion to reopen, but she failed to do so.
2 See BIA Practice Manual 5.5 (“Transcript Requests”).
3 Huang’s failure to support the allegations in her second
4 motion to reopen with transcripts of either her hearings or
5 the IJ’s 2009 oral decision is fatal to her ability to show
6 that the denial rested in fact on–-or was even related to--
7 the fraudulent marriage certificate or other prejudice
8 arising from her counsel’s alleged errors. See Rabiu, 41
9 F.3d at 882.
10 Huang argues–-using an isolated quotation from a
11 recording of the IJ’s oral decision that is not in the
12 record–-that Wang’s submission of the fraudulent marriage
13 certificate wrongfully served as the basis for the IJ’s
14 decision to deny her applications for relief. We are unable
15 to consider this argument, however, because our review is
16 limited to the record on appeal. See Zhou Yun Zhang v. INS,
17 386.F.3d 66, 73-74 (2d Cir. 2004), overruled on other
18 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3D
19 296 (2d Cir. 2007). She therefore cannot carry her burden
20 of demonstrating prejudice from Wang’s actions or Yerman’s
21 failure to discover Wang’s actions. See
id.
22 Similarly, without transcripts of her hearings and the
23 IJ’s 2009 oral decision, Huang cannot show that she was
5
1 prejudiced by any of Policarpio’s advice or actions,
2 including his initial recommendation to forgo appeal and his
3 decision not to raise an ineffective assistance of counsel
4 claim against Yerman. See id. Accordingly, the BIA did not
5 abuse its discretion in finding that Huang failed to show
6 prejudice from her former counsel’s alleged errors and
7 denying her motion to reopen as untimely. See Rabiu,
41
8 F.3d at 882;
Abudu, 485 U.S. at 110.
9 Huang also argues for the first time in this Court that
10 she was prejudiced by Yerman’s filing of a baseless
11 application for asylum rather than an application for
12 adjustment of status or cancellation of removal, for which
13 she was allegedly eligible. Before the BIA, Huang alleged
14 something different: that Wang’s filing of the fraudulent
15 marriage certificate resulted in the denial of the
16 meritorious asylum claim that Yerman filed for her. Because
17 Huang failed to present this new argument to the agency, we
18 decline to consider it now. See Lin Zhong v. U.S. Dep’t of
19 Justice,
480 F.3d 104, 119-20 (2d Cir. 2006).
20 Huang’s failure to support her motion with transcripts
21 also prevents her from demonstrating that the IJ’s denial of
22 her application for asylum, withholding of removal, and
23 relief under the Convention Against Torture, violated her
6
1 due process rights. See Abudu, 485 U.S. at 110. Huang
2 argues that in her motion she identified law previously
3 unconsidered by the IJ. But her counsel’s arguments, new or
4 not, do not of themselves constitute grounds for a motion to
5 reopen. See INS v. Phinpathya,
464 U.S. 183, 188 n.6
6 (1984). And without transcripts of the IJ’s 2009 oral
7 decision, Huang’s assertions regarding what the IJ
8 considered are inadequately supported. Thus, even assuming
9 that the BIA erred in construing her due process allegations
10 as grounds for an untimely motion to reconsider, remanding
11 these proceedings would be futile. See Cao He Lin v. U.S.
12 Dep’t of Justice,
428 F.3d 391, 401 (2d Cir. 2005) (holding
13 that remand is not required “where there is no realistic
14 possibility that, absent the errors, the IJ or BIA would
15 have reached a different conclusion”).
16 Last, Huang’s argument that the BIA applied an
17 incorrect standard when it considered only whether she was
18 prejudiced by her former counsel’s errors is misplaced. The
19 BIA’s findings that Huang failed to pursue diligently her
20 claims for ineffective assistance, and that she failed to
21 demonstrate prejudice from her counsel’s alleged errors,
22 each provided an independent basis for denying her untimely
23 motion to reopen. Accordingly, the BIA had no obligation to
7
1 assess whether competent counsel would have acted otherwise.
2 See Rashid, 533 F.3d at 130-131;
Rabiu, 41 F.3d at 882-83;
3 see also INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a
4 general rule courts and agencies are not required to make
5 findings on issues the decision of which is unnecessary to
6 the results they reach.”).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
8
