Loja-Cajamarca v. Lynch , 661 F. App'x 71 ( 2016 )

15-2097
Loja-Cajamarca v. Lynch
BIA
A088 441 369
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
20th day of September, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
PETER W. HALL,
Circuit Judges.
_____________________________________
LUIS AMABLE LOJA-CAJAMARCA,
Petitioner,
v. 15-2097
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: James A. Welcome, Waterbury, CT.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Daniel
E. Goldman, Senior Litigation
Counsel; Mona Maria Yousif,
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Luis Amable Loja-Cajamarca, a native and
citizen of Ecuador, seeks review of a June 2, 2015, decision
of the BIA denying his motion to reopen. In re Luis Amable
Loja-Cajamarca, No. A088 441 369 (B.I.A. June 2, 2015). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse
of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006). An alien seeking to reopen proceedings may file one
motion to reopen no later than 90 days after the final
administrative decision is rendered. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). The time
limitation may be excused to accommodate a claim of ineffective
assistance of counsel. Rashid v. Mukasey, 533 F.3d 127, 130
(2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159-60 (2d
Cir. 2006). To warrant that equitable tolling, Loja-Cajamarca
had to “demonstrate . . . that [he] has exercised due diligence
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in pursuing [his claim].” Iavorski v. INS, 232 F.3d 124, 135
(2d Cir. 2000). And he had to demonstrate prejudice: that his
“counsel’s performance was so ineffective . . . [that it]
impinged upon the fundamental fairness of the hearing in
violation of the fifth amendment due process clause.” Rabiu
v. INS, 41 F.3d 879, 882 (2d Cir. 1994). The BIA was within
its discretion to find that Loja-Cajamarca’a untimely motion
failed on both scores.
The due diligence inquiry has two steps: first, determine
“whether and when the ineffective assistance ‘[was], or should
have been, discovered by a reasonable person in the situation.’
Then, petitioner bears the burden of proving that he has
exercised due diligence in the period between discovering the
ineffectiveness of his representation and filing the motion to
reopen.” Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007)
(quoting Iavorski, 232 F.3d at 134). The petitioner must
demonstrate “due diligence” in pursuing a claim “during the
entire period he . . . seeks to toll.” Rashid, 533 F.3d at 132.
The BIA reasonably found that Loja-Cajamarca knew or should
have known about his counsel’s purported error at his May 2011
hearing, when she withdrew his application for withholding of
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removal on the record. After announcing his oral decision, the
IJ confirmed that Loja-Cajamarca understood both English and
the decision. Using that hearing date as a starting point, the
BIA was within its discretion to find that waiting nearly five
years to raise the ineffective assistance claim does not amount
to due diligence. Iavorski, 232 F.3d at 134.
Loja-Cajamarca argues that the BIA should have started the
diligence clock in February 2013, when it dismissed his appeal,
rather than in May 2011, when he knew about the purported error.
As the Government notes, this argument is unexhausted. Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007)
(“Judicially-imposed doctrines of issue exhaustion . . . will
usually mean that issues not raised to the BIA will not be
examined by the reviewing court.”); 8 U.S.C. § 1252(d)(1).
Even if reached, it lacks merit: Loja-Cajamarca waited two years
after the BIA’s decision on appeal to move to reopen. See
Rashid, 533 F.3d at 132.
Nor did Loja-Cajamarca demonstrate prejudice. He alleged
that counsel was ineffective for withdrawing his application
for withholding of removal and filing an inadequate appellate
brief, but he did not identify any basis for withholding or what
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counsel should have argued on appeal. Cf. Changxu Jiang v.
Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (finding no
ineffective assistance where counsel made the “strategic
decision” to withdraw the alien’s application for withholding
of removal and seek only voluntary departure). For the same
reason, Loja-Cajamarca’s due process arguments, to the extent
he exhausted them, fail. Rabiu, 41 F.3d at 882. His
ineffective assistance claim appears to be a pretext for
reopening so that he can apply for cancellation based on the
birth of his child in 2014. His counsel could not have sought
cancellation on that basis in 2011, and that form of relief does
not provide any exception to the time limitation on reopening.
Loja-Cajamarca criticizes the BIA decision as lacking
adequate explanation. But the BIA applied this Court’s law to
the facts of Loja-Cajamarca’s case. Nothing more was required.
Cf. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d
Cir. 2001) (“An abuse of discretion may be found . . . where
the [BIA’s] decision provides no rational explanation,
inexplicably departs from established policies, is devoid of
any reasoning, or contains only summary or conclusory
statements; that is to say, where the Board has acted in an
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arbitrary or capricious manner.” (internal citations
omitted)).
Loja-Cajamarca dedicates the bulk of his brief to
describing his compliance with the procedures laid out in Matter
of Lozada, 19 I. & N. Dec. 637 (BIA 1988). But the BIA’s
decision did not rest on failure to comply with those
procedures, which are not enough: he still needed to show due
diligence and prejudice.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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