Yadgarov v. Holder , 391 F. App'x 918 ( 2010 )

09-3434-ag
Yadgarov v. Holder
BIA
A097 526 418
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 31 st day of August, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 ATKHAMZHAN YADGAROV,
14 Petitioner,
15
16 v. 09-3434-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Alexander J. Segal, Grinberg &
24 Segal, P.L.L.C., New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; William C. Minick,
30 Attorney, Office of Immigration
31 Litigation, 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 Petitioner Atkhamzhan Yadgarov, a native of the former
6 Soviet Union and citizen of Kazakhstan, seeks review of the
7 July 23, 2009, order of the BIA denying his motion to
8 reopen. In re Yadgarov, No. A097 526 418 (B.I.A. July 23,
9 2009). We review the BIA’s denial of a motion to reopen for
10 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
11 (2d Cir. 2006). We assume the parties’ familiarity with the
12 underlying facts and procedural history of the case.
13 The BIA did not abuse its discretion in denying
14 Yadgarov’s motion based on its finding that he failed to
15 show that his former counsel’s conduct was prejudicial. See
16 Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); Esposito v.
17 INS, 987 F.2d 108, 111 (2d Cir.1993) (holding that to
18 prevail on a claim of ineffective assistance of counsel, a
19 petitioner must show that competent counsel would have acted
20 otherwise and that he was prejudiced by his counsel’s
21 conduct). To show prejudice, Yadgarov contends that his
22 attorney failed to instruct him to get documents from
2
1 Kazakhstan to support his claims of persecution, implying
2 that such documents existed and would have proved helpful.
3 But, he testified that he had asked family members to send
4 him a statement weeks in advance of his removal hearing, and
5 he has failed to show what documents he would have produced
6 had he received different advice from counsel. Although
7 Yadgarov further contends that his attorney failed to show
8 him a copy of the document purported to be his personal
9 statement, he testified that he wrote the statement himself
10 and gave no other indication during the proceedings before
11 the IJ that the statement was fabricated. Under these
12 circumstances, it was within the Board’s discretion to
13 conclude that better advice would have made no material
14 difference.
15 Finally, because Yadgarov does not challenge the BIA’s
16 denial insofar as it construed his motion as a motion to
17 reconsider, we do not address that portion of the BIA’s
18 opinion.
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
3
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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