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 2019-12

Chen v. Barr ( 2019 )


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  •      18-88
Chen v. Barr
BIA
A077 958 075
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 United
3   States Courthouse, 40 Foley Square, in the City of New York,
4   on the 23rd day of December, two thousand nineteen.
5
6   PRESENT:
7            BARRINGTON D. PARKER,
8            CHRISTOPHER F. DRONEY,
9            MICHAEL H. PARK,
10                 Circuit Judges.
11   _____________________________________
12
13   HAN CHEN, AKA JOHN HUYNH,
14            Petitioner,
15
16                  v.                                           18-88
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Vlad Kuzmin, New York, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
26                                    Attorney General; Claire L.
27                                    Workman, Senior Litigation
28                                    Counsel; Don G. Scroggin, Trial
29                                    Attorney, Office of Immigration
30                                    Litigation, United States
31                                    Department of Justice, Washington,
32                                    DC.
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 DISMISSED in part and DENIED in part.
5        We review the BIA’s denial of a motion to reopen for
6    abuse of discretion.        Ali v. Gonzales,
    448 F.3d 515
    , 517 (2d
7    Cir. 2006). An alien may file one motion to reopen no later
8    than 90 days after the final administrative decision is
9    rendered.      8   U.S.C.   §   1229a(c)(7)(A),   (C)(i);   8   C.F.R.
10   § 1003.2(c)(2).       It is undisputed that Chen’s August 2017
11   motion to reopen was untimely and also barred because it was
12   his fourth motion to reopen, filed over 13 years after his
13   June 2004 order of removal.        Chen’s motion to reopen was to
14   apply to adjust status, but such an application does not
15   provide any exception to the time and number limitations in
16   the statute.       See Matter of Yauri, 25 I. & N. Dec. 103, 105
17   (BIA 2009) (emphasizing “that untimely motions to reopen to
18   pursue an application for adjustment of status . . . do not
19   fall within any of the statutory or regulatory exceptions to
20   the time limits for motions to reopen before the [BIA]”).
2
1           Although an equitable exception may apply where the
2    movant demonstrates ineffective assistance of counsel, see
3    Rashid v. Mukasey,
    533 F.3d 127
    , 130 (2d Cir. 2008), the BIA
4    did not err in concluding that Chen failed to satisfy the
5    procedural requirements for such a claim.       Under Matter of
6    Lozada, 19 I. & N. Dec. 637 (BIA 1988), the movant must
7    provide an affidavit detailing his agreement with former
8    counsel, proof that he notified former counsel and the proper
9    disciplinary    authority   of   his   allegations,   and   either
10   evidence a disciplinary complaint was filed or explanation
11   for not doing so.     Twum v. INS,
    411 F.3d 54
    , 59 (2d Cir.
12   2005).    Failure to substantially comply with the requirements
13   constitutes forfeiture of an ineffective assistance claim.
14   See Jian Yun Zheng v. U.S. Dep’t of Justice,
    409 F.3d 43
    , 46–
15   47 (2d Cir. 2005).      Chen submitted an affidavit alleging
16   ineffective assistance and a copy of a letter informing his
17   counsel of his allegations; however, he did not contact the
18   proper disciplinary authorities or explain his reason for
19   failing to do so.    See Matter of Lozada, 19 I. & N. Dec. at
20   639.     Accordingly, he forfeited his ineffective assistance
21   claim.    See Jian Yun
    Zheng, 409 F.3d at 46
    –47.
3
1           We dismiss the petition as to the only remaining basis
2    for reopening because the BIA’s decision not to reopen sua
3    sponte    is   “entirely   discretionary”   and   not   subject   to
4    judicial review.     See 8 C.F.R. § 1003.2(a);
    Ali, 448 F.3d at 5 
       518.
6           For the foregoing reasons, the petition for review is
7    DENIED in part and DISMISSED in part.        All pending motions
8    and applications are DENIED and stays VACATED.
9                                  FOR THE COURT:
10                                  Catherine O’Hagan Wolfe,
11                                  Clerk of Court
4