Tazu v. Holder ( 2010 )

09-2520-ag (L); 09-2521-ag (Con)
Tazu v. Holder
BIA
A073 164 337
A073 164 338
A073 164 339
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 19 th day of July, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 SYED TAZU, SHAHIDA RAHMAN,
15 SYED SHADMAN SARAR,
16 Petitioners,
17
18 v. 09-2520-ag (L);
19 09-2521-ag (Con)
20 NAC
21 ERIC H. HOLDER, JR., UNITED STATES
22 ATTORNEY GENERAL, DEPARTMENT OF
23 HOMELAND SECURITY,
24 Respondents.
25 ______________________________________
26
27 FOR PETITIONERS: Amy N. Gell, Gell & Gell, New York,
28 New York.
29
30 FOR RESPONDENTS: Tony West, Assistant Attorney
31 General, Civil Division; Cindy S.
32 Ferrier, Senior Litigation Counsel;
33 M. Jocelyn Lopez Wright, Senior
1 Litigation Counsel; Keith I.
2 McManus, Senior Litigation Counsel,
3 Office of Immigration Litigation,
4 Civil Division; Kristin K. Edison,
5 Attorney, Civil Division, U.S.
6 Department of Justice, Washington,
7 D.C.
89 UPON DUE CONSIDERATION of these petitions for review of
10 two Board of Immigration Appeals (“BIA”) decisions, it is
11 hereby ORDERED, ADJUDGED, AND DECREED that these petitions
12 for review are sua sponte CONSOLIDATED. The consolidated
13 petitions for review are DENIED.
14 The Petitioners, Syed Tazu, his wife, Shahida Rahman,
15 and their son, Syed Shadman Sarar, natives and citizens of
16 Bangladesh, seek review of: (1) a May 13, 2009, order of the
17 BIA, denying Tazu and Rahman’s motion to reopen, In re Tazu,
18 Nos. A 073 164 338/339 (B.I.A. May 13, 2009); and (2) a May
19 13, 2009, order of the BIA, denying Sarar’s motion to
20 reopen, In re Sarar, No. A 073 164 337 (B.I.A. May 13,
21 2009). 1 We assume the parties’ familiarity with the
22 underlying facts and procedural history of the cases.
1
Because these petitions involve common issues of
law and fact, we sua sponte consolidate the cases for
disposition and designate Docket Number 09-2520-ag as the
lead petition. The Clerk’s Office is directed to amend
the official caption in this case to conform with this
order.
2
1 We review the BIA’s denial of a motion to reopen for
2 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
3 Cir. 2006). When the BIA considers relevant evidence of
4 country conditions in evaluating a motion to reopen, we
5 review the BIA’s factual findings under the substantial
6 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
7 138, 169 (2d Cir. 2008).
8 In general, an alien may only file one motion to reopen
9 and must do so within 90 days of the final administrative
10 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
11 It is indisputable that the Petitioners’ motions to reopen
12 were untimely. However, there is no time limitation where
13 the alien establishes materially “changed circumstances
14 arising in the country of nationality.” 8 C.F.R.
15 § 1003.2(c)(3)(ii). The filing deadline may also be
16 equitably tolled based on a claim of ineffective assistance
17 of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
18 2006).
19 I. Changed Country Conditions
20 In their motions, the Petitioners argued that country
21 conditions had changed in that anti-American sentiment and
22 religious extremism were on the rise in Bangladesh.
23 Contrary to the Petitioners’ argument here, the record does
3
1 not compellingly suggest that the BIA ignored any evidence
2 material to their claim. Indeed, we have rejected the
3 notion that the agency must “expressly parse or refute on
4 the record each individual argument or piece of evidence
5 offered by the petitioner.” See Jian Hui Shao, 546 F.3d at
6 169 (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d
7 Cir. 2007)) (internal quotation marks omitted). Regardless,
8 the evidence relied on by the Petitioners does not discuss,
9 much less establish, whether an increase in anti-American
10 sentiment and Islamic extremism has resulted in the
11 mistreatment of similarly situated “westernized”
12 Bangladeshis who return home. See id. at 160-61. Moreover,
13 although the BIA noted that Bangladesh suffers from
14 “generalized violence and terror attacks,” it properly found
15 such evidence insufficient to establish the Petitioners’
16 prima facie eligibility for asylum. See Melgar de Torres v.
17 Reno, 191 F.3d 307, 314 & n.3 (2d Cir. 1999) (noting that
18 generally high levels of crime or violence do not on their
19 own establish evidence of persecution).
20 II. Ineffective Assistance of Counsel
21 Petitioners Tazu and Rahman argued in their motion that
22 their former counsel provided ineffective assistance in
23 preparing their motion to reopen. In rejecting that claim,
4
1 the BIA found that Tazu and Rahman’s claim “was not
2 supported by any evidence that might have made a potential
3 showing of ineffective [] assistance or defective
4 performance of counsel.” The BIA’s seminal decision in
5 Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),
6 requires an individual moving to reopen his removal
7 proceedings based upon a claim of ineffective assistance of
8 counsel to: (1) support his motion with an affidavit
9 attesting to the relevant facts; (2) inform his former
10 counsel of the allegations and allow counsel the opportunity
11 to respond; and (3) disclose whether a complaint has been
12 filed with the appropriate disciplinary authorities
13 regarding such representation, and if not, to explain why
14 not. Id. at 639 (BIA 1988). 2
15 We find unavailing the Petitioners’ argument that they
16 have “substantial[ly] compli[ed]” with the Lozada
17 requirements. Tazu Br. at 19. Although we have rejected
18 any requirement of “slavish adherence” to Lozada, Yi Long
19 Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007), we have
20 nonetheless held that an “alien who has failed to comply
2
To the extent the Petitioners argue their case
should be remanded because the BIA erroneously referred
to the now vacated Matter of Compean, 24 I. & N. Dec. 710(A.G. 2009), the record indicates that the BIA correctly
applied the Lozada framework.
5
1 substantially with the Lozada requirements in her motion to
2 reopen before the BIA forfeits her ineffective assistance of
3 counsel claim in this Court,” Jian Yun Zheng v. U.S. Dep’t
4 of Justice, 409 F.3d 43, 47 (2d Cir. 2005). Here, the
5 Petitioners concede that they failed either to inform their
6 attorney of the allegations against him or file a bar
7 complaint with the appropriate authorities. Although before
8 this Court the Petitioners proffer an explanation for why
9 they failed to file a complaint against their former
10 counsel, they did not do so before the BIA. That argument
11 is therefore unexhausted. See Lin Zhong v. U.S. Dep’t of
12 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Accordingly,
13 the BIA did not abuse its discretion in denying their motion
14 to reopen. See Jian Yun Zheng, 409 F.3d at 47.
15 For the foregoing reasons, the petitions for review are
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted is VACATED, and
18 any pending motion for a stay of removal is DISMISSED as
19 moot. Any pending request for oral argument is DENIED in
20 accordance with Federal Rule of Appellate Procedure 34(a)(2)
21 and Second Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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