Kuffour v. Sessions , 907 F.3d 112 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1855
MARK KWADWO KUFFOUR,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Taryn Pleva and the Law Offices of Jan Allen Reiner on brief
for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Anthony P. Nicastro, Assistant Director, Office of
Immigration Litigation, and Sabatino F. Leo, Trial Attorney,
Office of Immigration Litigation, Civil Division, on brief for
respondent.
October 26, 2018
LIPEZ, Circuit Judge. Petitioner Mark Kwadwo Kuffour
challenges the Board of Immigration Appeals' ("BIA" or "Board")
denial of his motion to reconsider its order refusing to reopen
his case. Finding no abuse of discretion, we deny his petition
for review.
I.
Kuffour is a citizen of Ghana who unlawfully entered the
United States in 1997. In July 2009, he was served with a notice
to appear charging him with removability. Kuffour engaged attorney
Obadan Iziokhai, who submitted pleadings on his behalf seeking
cancellation of removal based on hardship to his U.S.-citizen
daughter and voluntary departure. See 8 U.S.C. §§ 1229b(b),
1229c(b). However, Iziokhai withdrew from representing Kuffour at
the start of his March 2014 removal hearing, and Kuffour proceeded
at the hearing pro se.
The Immigration Judge ("IJ") denied Kuffour's request
for cancellation of removal on the ground that he had not shown
that his daughter would suffer the requisite "exceptional and
extremely unusual hardship" to justify that relief. See id. §
1229b(b)(1)(D). The IJ also denied voluntary departure. Kuffour
then hired attorney Randy Feldman to assist him in filing an appeal
to the BIA.
Before the BIA, Kuffour challenged the IJ's voluntary
departure ruling and asked, based on an executive order, that the
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Board administratively close his proceedings. He did not appeal
the denial of cancellation of removal. The BIA affirmed the IJ's
denial of voluntary departure and declined to administratively
close the proceedings. Kuffour once again obtained new counsel
and moved to reopen the proceedings based on the asserted
ineffective assistance of his two previous attorneys. Kuffour
claimed that the attorneys' deficient representation had
"eliminated [his] right to pursue his application for Cancellation
of Removal and thereby[] to potentially remain in the United States
if his application was granted." Kuffour claimed that, but for
the ineffective assistance, he would have provided documents
showing his eligibility for cancellation of removal; however, he
did not submit such documents with the motion to reopen.
In denying the motion to reopen, the BIA observed that
Kuffour had "proffered no evidence in support of his asserted
eligibility for either cancellation of removal . . . or . . .
voluntary departure" and, hence, had failed to show "patent error
or prejudice." The BIA also found that the motion did not comply
with the procedural requirements for bringing an ineffective
assistance of counsel claim in immigration proceedings. See
Punzalan v. Holder, 575 F.3d 107, 109 n.1 (1st Cir. 2009); Matter
of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
Kuffour did not file a petition for review of that
decision, but he instead sought reconsideration from the BIA. In
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his motion to reconsider, Kuffour asserted that the BIA made
factual errors when it concluded that he had neither proven
eligibility for cancellation of removal nor shown ineffective
assistance of counsel. He further claimed that the BIA "made a
mistake of fact and law" when it concluded that he had not
satisfied the procedural requirements for an ineffective
assistance claim.
The BIA denied the motion to reconsider. It observed,
inter alia, that Kuffour "does not identify any prior argument
presented on appeal that was overlooked by the Board[;] nor does
[he] identify any error of law or fact in the [original] decision
based on the record then before the Board." The BIA also
reiterated that Kuffour had not complied with the procedural
requirements for filing an ineffective assistance claim. This
petition for review followed.
II.
We review the BIA's denial of a motion to reconsider for
abuse of discretion. See, e.g., Muyubisnay-Cungachi v. Holder,
734 F.3d 66, 70 (1st Cir. 2013). Under this deferential standard,
we will "uphold the BIA's decision unless that decision is
'arbitrary, irrational, or contrary to law.'" Liu v. Mukasey, 553
F.3d 37, 40 (1st Cir. 2009) (quoting Abdullah v. Gonzales, 461
F.3d 92, 99 (1st Cir. 2006)).
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A motion to reconsider is "intended only to cure errors
(factual or legal) in the prior BIA decision." Martinez-Lopez v.
Holder, 704 F.3d 169, 172 (1st Cir. 2013) (discussing 8 U.S.C.
§ 1229a(c)(6)). Such a motion must therefore specify the asserted
errors, 8 C.F.R. § 1003.2(b)(1), and not merely "regurgitate[]
contentions that were previously made and rejected." Liu, 553
F.3d at 39; see also In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA
2006) ("[A] motion to reconsider is not a process by which a party
may submit, in essence, the same brief presented on appeal and
seek reconsideration by generally alleging error in the prior Board
decision."). A motion to reconsider is also not the proper vehicle
for introducing new facts; reconsideration "contests the
correctness of the original decision based on the previous factual
record, as opposed to a motion to reopen, which seeks a new hearing
based on new or previously unavailable evidence." In re O-S-G-,
24 I. & N. Dec. at 57-58; see also 8 C.F.R. § 1003.2(c).
Accordingly, our task is not to examine the merits of
Kuffour's ineffective assistance claim to determine whether the
BIA correctly denied his motion to reconsider based on that claim.1
Rather, we evaluate only whether the BIA abused its discretion in
denying the motion on the ground that Kuffour failed to identify
1The original denial of the motion to reopen is not before
us because, as noted above, Kuffour did not file a petition for
review of that decision.
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a specific legal or factual error in the BIA's original
adjudication of his motion to reopen. Liu, 553 F.3d at 39.
We find no such abuse of discretion. In his motion to
reconsider, Kuffour asserted that the BIA erred in refusing to
reopen his proceedings, but he supported that assertion only by
reiterating the same arguments that the BIA previously had
considered and rejected. He did not point to specific errors in
the BIA's assessment of his contentions. Although Kuffour
submitted new documents with his motion that might have been
relevant to his eligibility for cancellation of removal, those new
materials -- as noted above -- could not be added to the record at
that stage of the proceedings. Without identifying an error of
law or fact in the BIA's denial of reconsideration based on the
record then before the agency, Kuffour's motion cannot succeed.
Finally, we need not consider whether Kuffour's motion
to reconsider properly specified errors in the BIA's ruling that
he failed to comply with the procedural requirements for an
ineffective assistance claim. Because Kuffour has not shown that
the BIA abused its discretion in refusing to revisit the motion to
reopen based on the merits of the ineffective assistance claim,
its determination on the procedural issue is of no consequence.2
2
Kuffour's petition for review also appears to claim error
in the BIA's refusal to reconsider its denial of the motion to
reopen proceedings based on the IJ's "misconduct" in allowing
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III.
For the foregoing reasons, the BIA did not abuse its
discretion in rejecting Kuffour's motion to reconsider. We thus
deny the petition for review.
So ordered.
Iziokhai to withdraw on the day of his hearing. Among other flaws
with such a claim, Kuffour did not seek reopening on that basis.
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