13-2877
         Yunga v. Lynch
                                                                                       BIA
                                                                               A095 376 403
                           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 11th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                RICHARD C. WESLEY,
10                CHRISTOPHER F. DRONEY,
11                     Circuit Judges.
12       _____________________________________
13
14       BOLIVAR PATRICIO YUNGA,
15                Petitioner,
16
17                        v.                                    13-2877
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.1
22       _____________________________________
23
24
25       FOR PETITIONER:               Matthew L. Guadagno, New York, NY.
26


                     1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is automatically
             substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; Leslie McKay, Assistant
 3                           Director; Margot L. Carter, Trial
 4                           Attorney, Office of Immigration
 5                           Litigation, United States Department
 6                           of Justice, Washington, D.C.

 7       UPON DUE CONSIDERATION of this petition for review of a

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

 9   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

10   review is DENIED.

11       Bolivar Patricio Yunga, a native and citizen of

12   Ecuador, seeks review of a July 2, 2013, decision of the BIA

13   denying reopening.   In re Bolivar Patricio Yunga, No. A095

14   376 403 (B.I.A. Jul. 2, 2013).    We assume the parties’

15   familiarity with the underlying facts and issues presented

16   for review and the procedural history of this case.

17       We review the BIA’s denial of reopening for abuse of

18   discretion.   Ali v. Gonzales, 

, 517 (2d Cir.

19   2006)(per curiam).   Reopening requires a showing of the

20   facts to be proven at a hearing and the submission of new,

21   previously unavailable, material evidence.   8 U.S.C.

22   § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).   Moreover, to

23   obtain reopening based on ineffective assistance of counsel,

24   an alien must show a violation of due process.   A claim

25   raised by an alien in immigration proceedings is governed by

                                   2
 1   the Fifth Amendment because the proceedings are civil.

 2   Debeatham v. Holder, 

, 485 (2d Cir. 2010)

 3   (distinguishing Fifth Amendment and Sixth Amendment

 4   ineffective assistance of counsel claims).     Yunga’s reliance

 5   on Sixth Amendment case law is, therefore, unavailing.

 6        “[T]o prevail on a claim of ineffective assistance of

 7   counsel, [the petitioner] must show that his counsel’s

 8   performance was so ineffective as to have impinged upon the

 9   fundamental fairness of the hearing in violation of the

10   fifth amendment due process clause.”   Rabiu v. INS, 

  879, 882 (2d Cir. 1994) (internal quotation marks omitted).

12   “[T]o show a deprivation of fundamental fairness, [an alien]

13   must allege facts sufficient to show 1) that competent

14   counsel would have acted otherwise, and 2) that he was

15   prejudiced by his counsel’s performance.”     Romero v. INS,

16   

, 112 (2d Cir. 2005) (internal quotation marks

17   and citation omitted).

18       Yunga faults his counsel at his merits hearing for

19   failing to question him on a number of issues, ranging from

20   his family members and alcoholism, to his payment of taxes

21   and reasons for frequenting prostitutes.     A review of the

22   merits hearing reveals that Yunga testified about his


                                  3
 1   extended family in the United States, his wife and daughter

 2   in Ecuador, his payment of taxes, his alcoholism, and his

 3   criminal record.   As Yunga does not identify how he would

 4   have responded if he had been asked different questions, and

 5   he has not shown that he was prejudiced by counsel’s

 6   performance.   Furthermore, while Yunga argues that his

 7   counsel should have focused on his rehabilitation from

 8   alcoholism, the record shows that counsel, on direct and re-

 9   direct examination, drew out favorable testimony that Yunga

10   has been sober since 2005 and had advised others of the

11   dangers of alcoholism.     As the IJ’s decision considered

12   these facts, Yunga’s “new evidence” (a 2013 toxicology

13   report and a 2013 doctor’s report that established his

14   sobriety) would not alter the result in the case.     The

15   thrust of the IJ’s finding that Yunga did not show he had

16   rehabilitated himself was premised on Yunga’s lengthy

17   criminal history, including his conviction while in

18   immigration proceedings.

19       Yunga also cites his counsel’s failure to call

20   character witnesses.     The record, however, contains eight

21   favorable affidavits or letters.     Yunga emphasizes that the

22   IJ commented that two submitted statements would be “given



                                     4
 1   diminished consideration if [the individuals were] not

 2   presented as witnesses.”     However, the agency did not cite

 3   the lack of witnesses as a reason for denying adjustment.

 4   Again, Yunga has not shown prejudice.     Because Yunga did not

 5   present evidence that would alter the result in his case, he

 6   has not demonstrated the prejudice required to reopen based

 7   on his hearing counsel’s alleged ineffectiveness.

 8       As to his appellate counsel, Yunga argues that she

 9   failed to comply with the procedural requirements set forth

10   in In re Lozada, 19 I&N Dec. 637 (BIA 1998).     Additionally,

11   Yunga alleges she should have presented “a counter-report

12   from a psychologist . . . to explain that [he] did not need

13   to attend AA meetings.”     While it is true that Yunga’s

14   appellate counsel did not comply with the Lozada

15   requirements, Yunga has failed to show that his hearing

16   counsel was ineffective (as discussed above).     Therefore, he

17   cannot show prejudice.     In addition, even if his appellate

18   counsel had submitted a psychologist report to the BIA on

19   direct appeal, the BIA is prohibited from considering new

20   evidence in the first instance.     8 C.F.R.

21   § 1003.1(d)(3)(iv).   Thus, counsel was not ineffective for

22   failing to submit evidence that the BIA could not consider.

23
                                     5
 1       Altogether, Yunga has not demonstrated that the BIA

 2   abused its discretion by denying reopening because he has

 3   not established the prejudice required to establish

 4   ineffective assistance of counsel.   For the foregoing

 5   reasons, the petition for review is DENIED.   As we have

 6   completed our review, any stay of removal that the Court

 7   previously granted in this petition is VACATED, and any

 8   pending motion for a stay of removal in this petition is

 9   DISMISSED as moot.   Any pending request for oral argument in

10   this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                               FOR THE COURT:
14                               Catherine O’Hagan Wolfe, Clerk
15
16
17




                                   6