Chowdhury v. Holder ( 2014 )

13-1106
Chowdhury v. Holder
BIA
A093 332 598
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 October, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ALAMGIR CHOWDHURY,
14
15 Petitioner,
16
17 v. 13-1106
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Salim Sheikh, New York, New York.
27
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Blair T. O’Connor,
3 Assistant Director; Edward C.
4 Durant, Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Alamgir Chowdhury, a native and citizen of
14 Bangladesh, seeks review of the BIA’s February 28, 2013
15 decision denying his motion to reopen. In re Alamgir
16 Chowdhury, No. A093 332 598 (B.I.A. Feb. 28, 2013). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 It is undisputed that Chowdhury’s motion to reopen,
20 filed one day beyond the 90-day period for reopening, was
21 untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
22 § 1003.2(c)(2). This period may be tolled if the alien can
23 demonstrate ineffective assistance of counsel. Rashid v.
24 Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To benefit from
25 equitable tolling, the alien must demonstrate, among other
26
2
1 requirements, prejudice as a result of counsel’s incompetent
2 performance. Id. at 130-31.
3 The BIA did not abuse its discretion in denying
4 Chowdhury’s motion to reopen, because Chowdhury’s many
5 arguments that counsel was incompetent failed to establish
6 prejudice. First, Chowdhury argues that counsel was
7 ineffective for failing to present sufficient evidence of
8 his continuous physical presence or good moral character.
9 The BIA correctly ruled that any failure of counsel to
10 develop those factors did not prejudice Chowdhury, because
11 the agency assumed those factors were met and denied his
12 application solely for failure to establish hardship.
13 Second, Chowdhury argues that counsel failed to warn
14 him about cross-examination, causing his testimony to appear
15 “untrustworthy.” But again he cannot show prejudice,
16 because the IJ did not find that Chowdhury lacked
17 credibility.
18 Third, Chowdhury argues that his former counsel should
19 have elicited testimony regarding the hardship his wife
20 would suffer if she accompanied him to Bangladesh. As the
21 BIA observed, Chowdhury and his wife testified
22 “unequivocally” at his merits hearing that she would not
3
1 return to Bangladesh, making any missing evidence of
2 hardship in Bangladesh irrelevant.
3 Fourth, he faults his counsel for not further
4 developing the record regarding his wife’s future hardship
5 if she remained in the United States after his removal,
6 particularly her health issues, her troubled former
7 marriage, and her difficulties with household chores. But
8 these issues were in fact developed below, through his
9 wife’s testimony and affidavit. Chowdhury himself concedes
10 that the IJ elicited testimony on these issues and he
11 presents no new facts unavailable during the initial
12 hearing.
13 Because the BIA did not abuse its discretion in
14 denying Chowdhury’s motion to reopen as untimely, we need
15 not reach the BIA’s alternative findings. As to Chowdhury’s
16 new claim that the BIA should have exercised its authority
17 to reopen sua sponte, this Court lacks jurisdiction to
18 review the BIA’s exercise of its sua sponte authority absent
19 alleged errors of law. Mahmood v. Holder, 570 F.3d 466, 469
20 (2d Cir. 2009).
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1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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