Eldemerdash v. Barr ( 2020 )

18-1956
Eldemerdash v. Barr
BIA
A061 905 354
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 9th day of September, two thousand twenty.
PRESENT:
SUSAN L. CARNEY,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
MOHAMED KHALED ELDEMERDASH, AKA
MOHAMMED ELDEMERDASH, AKA
MOHAMMED KHALED EL DEMERDASH,
Petitioner,
v. 18-1956
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Kareem El Nemr, Esq., Astoria,
NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Jessica E.
Burns, Senior Litigation Counsel,
Edward C. Durant, 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 Mohamed Khaled Eldemerdash, a native and
citizen of Egypt, seeks review of a June 14, 2018 decision of
the BIA denying his motion to reopen. In re Mohamed Khaled
Eldemerdash, No. 061 905 354 (B.I.A. June 14, 2018). We
assume the parties’ familiarity with the underlying facts and
procedural history.
Because Eldemerdash timely petitioned for review only of
the BIA’s June 2018 decision denying his motion to reopen,
our review is limited to that decision, and we may not
consider the agency’s underlying decision denying his
petition to remove the conditions on his residence.
See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-–
90 (2d Cir. 2001). We review the denial of
a motion to reopen for abuse of discretion. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
“A motion to reopen proceedings shall not be granted unless
it appears to the Board that evidence sought to be offered is
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material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294 (2d
Cir. 2006) (“[I]n reviewing the BIA’s determination of
whether previously unavailable evidence supported [a] motion
to reopen, we must inquire whether the evidence could have
been presented at the hearing before the IJ.”).
The BIA did not err in determining that Eldemerdash
failed to establish that the evidence he submitted with his
motion to reopen was previously unavailable. Eldemerdash’s
documents consisted of a log of calls between himself and his
former wife in 2009, emails between himself and his former
wife from 2009 to 2010, a 2013 divorce decree, his former
wife’s 2015 death certificate, and documents showing he lived
in North Carolina—where his former wife had lived—in 2011.
All of this evidence predated his 2016 hearing and he conceded
in his motion to reopen that the evidence was available, but
that his previous attorney had failed to submit it. To the
extent he argues that the failure to present the evidence
earlier should be excused because of ineffective assistance
of counsel, he forfeited that argument by failing to make any
effort to comply with the procedural requirements for an
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ineffective assistance claim set forth in Matter of Lozada,
19 I. & N. Dec. 637 (B.I.A. 1988). See Jian Yun Zheng v.
U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir. 2005) (“[A]n
alien who has failed to comply substantially with the Lozada
requirements in [his] motion to reopen before the BIA forfeits
[his] ineffective assistance of counsel claim in this
Court.”). Eldemerdash’s failure to present new, previously
unavailable evidence is dispositive, and we do not reach the
BIA’s alternative discussion of his prima facie eligibility
for a waiver of the joint petition requirement. See INS v.
Abudu, 485 U.S. 94, 104–05 (1988) (listing three independent
grounds for denial of a motion to reopen: failure to show
prima facie eligibility for relief; failure to present new,
previously unavailable evidence, and in cases involving
discretionary relief, a failure to show relief is warranted
as matter of discretion); INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (“As a general rule courts and agencies are not
required to make findings on issues the decision of which is
unnecessary to the results they reach.”). Finally,
Eldemerdash did not exhaust his argument that his divorce was
not valid for immigration purposes or show how, absent a
divorce, he met the requirements to remove the conditions on
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his status. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 122–23 (2d Cir. 2007) (holding that we are
generally limited to review of issues raised before the
agency).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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