Sheng Qui Dong v. Holder ( 2014 )

12-2637
Dong v. Holder
BIA
A 078 743 440
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 28th day of March, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 SHENG QUI DONG,
14 Petitioner,
15
16 v. 12-2637
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Vlad Kuzmin, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Leslie McKay,
27 Assistant Director; Sara J. Bergene,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 Sheng Qui Dong, a native and citizen of
6 China, seeks review of a February 9, 2011, decision of the
7 BIA, denying his motion to remand proceedings to the
8 immigration judge (“IJ”). In re Sheng Qui Dong, No. A078
9 743 440 (B.I.A. Feb. 9, 2011). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 We review the BIA’s decision to deny a motion to remand
13 for abuse of discretion. Li Yong Cao v. Dep’t of Justice,
14 421 F.3d 149, 156 (2d Cir. 2005). An alien seeking a remand
15 for consideration of new evidence must demonstrate that the
16 evidence to be offered “is material and was not available
17 and could not have been discovered or presented at the
18 former hearing.” See 8 C.F.R. § 1003.2(c)(1).
19 Dong does not meaningfully challenge the BIA’s
20 dispositive determination that his evidence of ineffective
21 assistance was previously available and could have been
22 presented in his prior appeal to the BIA. See Matter of
23 Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). While Dong
2
1 asserts that he pursued his ineffective assistance claim
2 diligently, he does not argue that his evidence was
3 unavoidable at the time of his first appeal to the BIA, nor
4 does he articulate any steps he took to obtain evidence
5 between the time he first became aware of his prior
6 counsel’s possible misconduct (in 2004) and when he
7 submitted documents in support of his claim (in November
8 2006), after the BIA had already dismissed his first appeal
9 of this issue for failure to comply with Matter of Lozada.
10 See 8 C.F.R. § 1003.2(c)(1); see also Cekic v. INS, 435 F.3d
11 167, 171 (2d Cir. 2006); Jian Hua Wang v. BIA, 508 F.3d 710,
12 715 (2d Cir. 2007).
13 The agency therefore did not abuse its discretion in
14 declining to remand for further consideration of his claim.
15 Because this finding is dispositive of Dong’s claims, we
16 decline to reach the agency’s alternative bases for
17 rejecting his claim of ineffective assistance of counsel or
18 denying asylum. See INS v. Bagamasbad, 429 U.S. 24, 25
19 (1976).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
3
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2) and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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