Reyes-Francisco v. Holder ( 2011 )

10-2293-ag
Reyes-Francisco v. Holder
BIA
A075 418 435
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of April, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 ENRIQUE REYES-FRANCISCO,
14 Petitioner,
15
16 v. 10-2293-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Howard Laurence Baker, Wilens &
24 Baker, P.C., New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Mary Jane Candaux,
28 Assistant Director; Rosanne M.
29 Perry, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Enrique Reyes-Francisco, a native and
6 citizen of Mexico, seeks review of a May 13, 2010 decision
7 of the BIA denying his motion to reconsider its denial of
8 his motion to reopen. In re Enrique Reyes-Francisco, No.
9 A075 418 435 (B.I.A. May 13, 2010). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of the case.
12 We review for abuse of discretion the BIA’s denial of a
13 motion to reconsider. See Jin Ming Liu v. Gonzales, 439
14 F.3d 109, 111 (2d Cir. 2006). As an initial matter, because
15 Reyes-Francisco has filed a timely petition for review from
16 the denial of his motion to reconsider, but not from the
17 underlying decision for which reconsideration is sought, we
18 review only the denial of the motion to reconsider. See Ke
19 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d
20 Cir. 2001). We therefore lack jurisdiction to review his
21 ineffective assistance of counsel claim against Ms. Sheri
22 Paige, which he raised in his motion to reopen. See 8
23 U.S.C. § 1252(b)(1).
2
1 The BIA did not abuse its discretion in denying Reyes-
2 Francisco’s motion to reconsider. Reyes-Francisco argues
3 that the BIA erred in finding that he could not properly
4 bring a claim of ineffective assistance of counsel against
5 Mr. Mario DeMarco – the sole principal of the law firm that
6 employed Reyes-Francisco’s attorney of record, Mr. Mark C.
7 Salvucci – when Mr. DeMarco did not personally represent him
8 in his removal proceedings. In rejecting this claim, the
9 BIA reasonably relied on the agency’s regulations, which
10 recognize only those attorneys who submit a notice of
11 appearance and personally practice before the Executive
12 Office for Immigration Review. See 8 C.F.R. § 1001.1(i)
13 (defining the term practice as “the act or acts of any
14 person appearing in any case, either in person or through
15 the preparation or filing of any brief or other document,
16 paper, application, or petition on behalf of another person
17 or client before or with DHS, or any immigration judge, or
18 the Board.”); see also 8 C.F.R. § 1292.4(a) (“An appearance
19 shall be filed on the appropriate form by the attorney or
20 representative appearing in each case”); cf. Fuentes-Argueta
21 v. INS, 101 F.3d 867, 872-73 (2d Cir. 1996) (finding no
22 denial of the right to counsel in the decision of an
3
1 Immigration Judge declining to recognize as counsel of
2 record an attorney who had not filed a formal notice of
3 appearance). Furthermore, contrary to Reyes-Francisco’s
4 argument, the BIA did not abuse its discretion by failing
5 explicitly to consider his challenge to its due diligence
6 finding because its alternative finding that there was no
7 basis for an ineffective assistance of counsel claim against
8 Mr. DeMarco was dispositive of Reyes-Francisco’s motion to
9 reconsider. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
10 2006) (requiring an alien to demonstrate due diligence
11 independent from the requirement of demonstrating
12 ineffective assistance of former counsel).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1 (b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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