Filed: Feb. 12, 2020
Latest Update: Mar. 03, 2020
Summary: 18-109 Perla v. Barr BIA Sichel, IJ A094 100 352 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
Summary: 18-109 Perla v. Barr BIA Sichel, IJ A094 100 352 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 NOTATIO..
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18-109
Perla v. Barr
BIA
Sichel, IJ
A094 100 352
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.
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 12th day of February, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
JOSE R. PERLA,
Petitioner,
v. 18-109
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Bruno Joseph Bembi, Hempstead,
NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Holly M. Smith, Senior
Litigation Counsel, Jesse Lloyd
Busen, Trial 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 Jose R. Perla, a native and citizen of El
Salvador, seeks review of a December 21, 2017, decision of
the BIA affirming a May 11, 2017, decision of an Immigration
Judge (“IJ”) denying Perla’s motion to reopen. In re Jose
R. Perla, No. A 094 100 352 (B.I.A. Dec. 21, 2017), aff’g No.
A 094 100 352 (Immig. Ct. N.Y. City May 11, 2017). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We review a denial of a motion to reopen for abuse of
discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69
(2d Cir. 2008). The agency did not abuse its discretion in
declining to reopen because Perla did not present new evidence
that was previously unavailable. See INS v. Abudu,
485 U.S.
94, 104 (1988); see also 8 C.F.R. § 1003.23(b)(3) (“A motion
to reopen will not be granted unless the Immigration Judge is
satisfied that evidence sought to be offered is material and
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was not available and could not have been discovered or
presented at the former hearing.”). Perla attached to his
motion to reopen an asylum officer’s 1998 notes and a 2011
BIA decision temporarily suspending his former counsel from
practicing before the BIA. Both of these documents predated
Perla’s 2016 immigration proceedings. Perla argues that
these documents were unavailable to him because he did not
have notice that his credibility was in question. However,
the record reflects that he was questioned about
inconsistencies at his hearing and thus was on notice that
his credibility was at issue. Moreover, Perla had “the
ultimate burden of introducing [corroborating] evidence
without prompting from the IJ.” Chuilu Liu v. Holder, 575
F.3d 193, 198 (2d Cir. 2009).
To the extent that Perla moved to reopen based on
ineffective assistance of counsel, the agency correctly found
that he failed to comply with the procedural requirements set
forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
Perla failed to provide an affidavit detailing his agreement
with his former counsel, show that he informed his prior
counsel of his allegations, and explain why he did not file
3
any complaints against his attorney. See id. at 639. Perla
is incorrect that Matter of Compean, 24 I. & N. Dec. 710 (A.G.
2009), overruled Matter of Lozada because the Attorney
General vacated Matter of Compean and held that the agency
“should apply the pre-Compean standards to all pending and
future motions to reopen based upon ineffective assistance of
counsel, regardless of when such motions were filed.” Matter
of Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009). Accordingly,
Perla has forfeited his ineffective assistance of counsel
claim. Jian Yun Zheng v. U.S. Dep’t of Justice,
409 F.3d 43,
47 (2d Cir. 2005) (holding that “alien who has failed to
comply substantially with the Lozada requirements . . . before
the BIA forfeits h[is] ineffective assistance of counsel
claim in this Court”).
Lastly, Perla’s remaining arguments are not properly
before this Court. His petition is timely only as to the
denial of the motion to reopen, not the underlying decision
ordering him removed and denying cancellation of removal.
See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-
90 (2d Cir. 2001). Accordingly, we are precluded from
reviewing his challenges to the merits of the adverse
4
credibility determination and the actions of the asylum
officer prior to his 2001 removal order.
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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