Filed: Dec. 19, 2018
Latest Update: Mar. 03, 2020
Summary: 17-3639 Wu v. Whitaker BIA Cheng, IJ A200 919 291 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 NOTAT
Summary: 17-3639 Wu v. Whitaker BIA Cheng, IJ A200 919 291 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 NOTATI..
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17-3639
Wu v. Whitaker
BIA
Cheng, IJ
A200 919 291
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 19th day of December, two thousand
5 eighteen.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 CHENG XI WU,
15 Petitioner,
16
17 v. 17-3639
18 NAC
19 MATTHEW G. WHITAKER, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Zhiyuan Qian, Esq., Law Office of
25 David Chien, P.C., New York, NY.
26
27 FOR RESPONDENT: Alexander J. Lutz, Trial
28 Attorney, Office of Immigration
29 Litigation; Chad A. Readler,
30 Acting Assistant Attorney General,
31 Civil Division; Jeffery R. Leist,
1 Senior Litigation Counsel, Office
2 of Immigration Litigation; United
3 States Department of Justice,
4 Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Cheng Xi Wu, a native and citizen of the
11 People’s Republic of China, seeks review of an October 13,
12 2017 decision of the BIA affirming a March 6, 2017 decision
13 of an Immigration Judge (“IJ”) denying Wu’s motion to reopen.
14 In re Cheng Xi Wu, No. A 200 919 291 (B.I.A. Oct. 13, 2017),
15 aff’g No. A200 919 291 (Immig. Ct. N.Y. City Mar. 6, 2017).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 We have reviewed the IJ’s decision denying reopening as
19 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
20 268, 271 (2d Cir. 2005). We review the agency’s denial of a
21 motion to reopen for abuse of discretion. Ali v. Gonzales,
22
448 F.3d 515, 517 (2d Cir. 2006). To obtain reopening, a
23 movant must present new, previously unavailable evidence that
24 establishes his prima facie eligibility for the relief
2
1 sought. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); INS v.
2 Abudu, 485 U.S. 94, 104 (1988).
3 Generally, to prevail on an ineffective assistance claim,
4 an alien must substantially comply with the procedural
5 requirements set forth in Matter of Lozada, 19 I. & N. Dec.
6 637-39 (B.I.A. 1988). These include providing an affidavit
7 “detail[ing] the agreement with former counsel,” proof that
8 former counsel has been notified of the allegations, and proof
9 of filing a complaint with a disciplinary authority. Twum
10 v. INS,
411 F.3d 54, 59 (2d Cir. 2005) (quoting Esposito v.
11 INS,
987 F.2d 108, 110 (2d Cir. 1993)). “[A]n alien who has
12 failed to comply substantially with the Lozada requirements
13 in h[is] motion to reopen before the BIA forfeits h[is]
14 ineffective assistance of counsel claim in this Court.” Jian
15 Yun Zheng v. U.S. Dep’t of Justice,
409 F.3d 43, 47 (2d Cir.
16 2005).
17 On appeal, Wu has failed to address the dispositive
18 bases for the agency’s denial of his motion. See Yueqing
19 Zhang v. Gonzales,
426 F.3d 540, 541 n.1,545 n.7 (2d Cir.
20 2005) (providing that issues not raised in an opening brief
21 are waived). Wu does not explain how the evidence that he
22 presented in support of reopening was material and
3
1 unavailable at the time of his prior hearing, nor does he
2 challenge the agency’s finding that he failed to satisfy
3 the procedural requirements for an ineffective assistance
4 of counsel claim. See Jian Yun Zheng, 409 F.3d at 46-47
5 (holding that our merits review of an ineffective
6 assistance claim is contingent upon petitioner’s
7 substantial compliance with the “reasonable requirements”
8 of Lozada). Consequently, he has not demonstrated that the
9 agency abused its discretion in denying reopening, Ali,
10 448 F.3d at 517, and we therefore deny his petition for
11 review.
12 Although we need not reach his additional arguments, we
13 write briefly to clarify why they also do not provide an
14 adequate basis for granting the petition.
15 Wu argues that the IJ applied an improper procedural
16 framework in finding that his asylum claim was fraudulent.
17 This argument fails for three reasons. First, Wu did not
18 raise this issue before the BIA. See Lin Zhong v. U.S. Dep’t
19 of Justice,
480 F.3d 104, 122 (2d Cir. 2007) (explaining that
20 issue exhaustion is mandatory). Second, Wu’s attack on the
21 IJ’s order of removal is not properly before us because Wu
22 petitioned for review only of the denial of reopening. See
4
1 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d
2 Cir. 2001). Third, the IJ did not independently determine
3 that Wu committed fraud: rather, during the agency
4 proceedings, Wu agreed to give up his asylee status and the
5 IJ simply relied on that concession.
6 Wu also argues that the IJ erred by denying his request
7 for an adjournment. He has not shown, however, that the
8 denial of an adjournment constituted abuse of discretion
9 either in itself or as related to the IJ’s denial of
10 reopening. See Morgan v. Gonzales,
445 F.3d 549, 551 (2d
11 Cir. 2006) (discussing IJ’s broad discretion in ruling on a
12 requested continuance). As noted above, Wu agreed to give
13 up his asylee status, and the record does not establish that
14 he thereafter pursued his adjournment request or that the IJ
15 ever ruled on it. In any event, we identify no abuse of
16 discretion in the BIA’s finding that Wu failed to demonstrate
17 prejudice from the absence of an adjournment: Wu points to no
18 evidence that he could have obtained or argument that he could
19 have presented had the adjournment been granted.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of removal
22 that the Court previously granted in this petition is VACATED,
5
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
6
