Malcolm v. Holder , 479 F. App'x 396 ( 2012 )

11-3861
Malcolm v. Holder
BIA
A040 089 328
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 20th day of September, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 CARL ANTHONY MALCOLM,
14 Petitioner,
15
16 v. 11-3861
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Barbara Dominique, The Dominique
24 Group, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Linda S. Wernery,
28 Assistant Director; William C.
29 Minick, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, 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 Carl Anthony Malcolm, a native and citizen of Jamaica,
6 seeks review of a September 6, 2011, order of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Carl Anthony Malcolm, No. A040 089 328 (B.I.A. Sep. 6,
9 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). In this case, the BIA did not
14 abuse its discretion in denying Malcolm’s motion.
15 An alien raising a claim of ineffective assistance of
16 counsel must substantially comply with the procedures for
17 raising such claims set forth in Matter of Lozada, 19 I. &
18 N. Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep’t of
19 Justice, 409 F.3d 43, 46 (2d Cir. 2005). The BIA reasonably
20 concluded that Malcolm did not demonstrate that he notified
21 his former attorney of his allegations against her as
22 required by Lozada, because he did not submit any evidence
23 of such notification.
2
1 Additionally, the record supports the BIA’s conclusion
2 that Malcolm failed to demonstrate that he was prejudiced by
3 his former attorney’s alleged ineffective assistance. See
4 Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006). Malcolm
5 argues that his attorney should not have conceded before the
6 Immigration Judge (“IJ”) that he was convicted under
7 subsection (1) of NY PENAL LAW § 120.00. But the BIA
8 reasonably concluded that Malcolm was not prejudiced by his
9 attorney’s concession, because the record of conviction
10 submitted by the government in front of the IJ established
11 that Malcolm’s conviction was under that subsection.
12 Similarly, the BIA reasonably concluded that Malcolm failed
13 to demonstrate that he was prejudiced by his former
14 attorney’s failure to apply for relief under the Convention
15 Against Torture (“CAT”), as Malcolm’s motion to reopen did
16 not establish that he was eligible for CAT relief, because
17 he did not show that any harm he might face from gang
18 violence in Jamaica would occur with the consent or
19 acquiescence of that country’s authorities. See Khouzam v.
20 Ashcroft, 361 F.3d 161, 168-71 (2d Cir. 2004).
21 For the foregoing reasons, the petition for review is
22 DENIED. Any pending request for oral argument in this
3
1 petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
4