Kolodziejczyk v. Barr ( 2020 )

18-1442 (L)
Kolodziejczyk v. Barr
BIA
A 098 692 668
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 11th day of March, two thousand twenty.
PRESENT:
PETER W. HALL,
SUSAN L. CARNEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
TOMASZ KOLODZIEJCZYK,
Petitioner,
v. 18-1442 (L),
19-911 (Con)*
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gail A. Dulay, Esq., Los Angeles,
CA.
* The Clerk of Court is directed to consolidate these appeals.
FOR RESPONDENT: Tracie N. Jones, Trial Attorney;
Cindy S. Ferrier, Assistant
Director; Joseph H. Hunt,
Assistant Attorney General, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioner Tomasz Kolodziejczyk, a native and citizen of
Poland, seeks review of a May 9, 2018 decision of the BIA
denying his motion to reopen his removal proceedings and a
March 14, 2019 decision of the BIA denying his motion to
reopen his removal proceedings or reconsider the prior denial
of reopening. In re Tomasz Kolodziejczyk, No. A 098 692 668
(B.I.A. May 9, 2018 & Mar. 14, 2019). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the agency’s denial of motions to reopen and
reconsider for abuse of discretion. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168–69, 173 (2d Cir. 2008). “An abuse
of discretion may be found in those circumstances where the
[BIA’s] decision provides no rational explanation,
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inexplicably departs from established policies, is devoid of
any reasoning, or contains only summary or conclusory
statements; that is to say, where the [BIA] has acted in an
arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t
of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations
omitted).
Reopening
With certain exceptions inapplicable here, an alien
seeking to reopen proceedings may file only one motion to
reopen and must do so no later than 90 days after the date on
which the final administrative decision was rendered.
8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
Kolodziejczyk’s December 2017 and July 2018 motions to reopen
were untimely and number-barred because they were his second
and third motions to reopen and he filed them more than four
years after 2013, when the BIA affirmed the IJ’s removal
order.
Compliance with these time and number limitations may be
excused based on ineffective assistance of counsel. Rashid
v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To obtain
reopening on this basis, however, a movant must generally
comply with the procedural requirements set out in Matter of
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Lozada, 19 I. & N. Dec. 637 (BIA 1988), and must show that
counsel’s actions were unreasonable and caused the movant
prejudice. See Debeatham v. Holder, 602 F.3d 481, 484–85 (2d
Cir. 2010); Rashid, 533 F.3d at 131.
Because Kolodziejczyk failed to substantially comply
with Lozada, we conclude that the agency did not abuse its
discretion in denying his second motion to reopen. Among
other things, Lozada requires the movant to submit “proof
that the [movant] notified former counsel of the allegations
of ineffective assistance and allowed counsel an opportunity
to respond.” Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005)
(quoting Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir.
1993)). “[I]f a violation of ethical or legal
responsibilities is claimed, [the movant must also submit] a
statement as to whether the [movant] filed a complaint with
any disciplinary authority . . . and, if a complaint was not
filed, an explanation for not doing so.” Id.
The BIA reasonably concluded that Kolodziejczyk did not
substantially comply with Lozada because he did not show that
he provided his former counsel sufficient opportunity to
respond and he did not file a complaint with the appropriate
disciplinary authorities. Kolodziejczyk now argues that he
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could not wait for a response from his former counsel because
he was scheduled for removal when he filed his motion. This
argument is unavailing because nothing in the record suggests
that he was prevented from contacting counsel sooner.
Kolodziejczyk does not dispute the BIA’s conclusion that his
failure to file a disciplinary complaint alone precludes him
from establishing substantial compliance. Moreover, his
arguments to the agency regarding his decision to defer filing
such a complaint suggest that he was not sure whether his
counsel’s conduct was in fact deficient.
Although we have found on occasion substantial compliance
with Lozada when the facts supporting the ineffective
assistance claim were “clear on the face of the record,” Yi
Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007), that
is not the case here. To the extent that Kolodziejczyk argues
that counsel was ineffective for failing to file a motion to
remand in the BIA, his argument is unavailing because he was
represented by a different and unrelated attorney in that BIA
appeal. His argument that counsel was ineffective for
failing to advise him to file such a motion also fails.
Kolodziejczyk is correct that he could have moved to remand
proceedings on the basis of his second wife’s pending
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immediate-relative visa petition (before the agency’s
approval of that petition) and without moving jointly with
the Department of Homeland Security (“DHS”). In re Velarde-
Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see Melnitsenko
v. Mukasey, 517 F.3d 42, 49 (2d Cir. 2008) (under Velarde-
Pacheco, a motion to reopen to pursue adjustment may be
granted prior to the adjudication of the visa petition filed
on the applicant’s behalf); Matter of Lamus-Pava, 25 I. & N.
Dec. 61, 64–65 (BIA 2009) (Velarde-Pacheco “does not grant
the DHS ‘veto’ power over an otherwise approvable Velarde
motion”). The grant of such a motion is a matter of BIA
discretion, however. It requires “clear and convincing
evidence indicating a strong likelihood that the [movant’s]
marriage is bona fide,” and it may take DHS opposition to the
motion into account. In re Velarde-Pacheco, 23 I. & N. Dec.
at 256; Matter of Lamus-Pava, 25 I. & N. Dec. at 64–65. Given
these standards, the BIA did not abuse its discretion in
concluding that a reasonable attorney could have made a
strategic decision to wait to take further action until the
visa petition was approved and to attempt then to obtain a
DHS stipulation to reopening in light of Kolodziejczyk’s
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prior unsuccessful attempt to adjust status.1
For similar reasons, the BIA did not abuse its discretion
in denying Kolodziejczyk’s third motion to reopen for failure
to establish that he was prejudiced by his prior counsel’s
actions. To establish the required prejudice, a movant must
show that “the outcome of his removal proceedings would have
been any different” had counsel acted differently.
Debeatham, 602 F.3d at 486. Kolodziejczyk argues that he
would have been able to present clear and convincing evidence
that his second marriage was bona fide, as required by
Velarde-Pacheco. Even if this were the case, in light of the
procedural history of this case, we cannot say that the agency
abused its discretion in finding it “speculative” that
Kolodziejczyk would have received a favorable discretionary
decision by the BIA on a motion to reopen his case before the
approval of his wife’s visa petition.
Reconsideration
1 Contrary to Kolodziejczyk’s argument, the agency did not
draw an improper adverse inference from his prior marriage.
Instead, the agency identified the history of his prior
application to adjust status as one reason that counsel might
have determined that Kolodziejczyk would obtain a strategic
benefit by waiting for his visa petition to be approved and
obtaining a stipulation from DHS before moving to reopen.
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Finally, the BIA did not abuse its discretion in denying
reconsideration of its denial of Kolodziejczyk’s second
motion to reopen. A motion for reconsideration must specify
errors of fact or law in the BIA’s decision and be supported
by pertinent authority. The BIA does not abuse its
discretion by denying a motion to reconsider that merely
repeats arguments previously rejected by the agency. See 8
C.F.R. § 1003.2(b)(1); Jin Ming Liu v. Gonzales, 439 F.3d
109, 111 (2d Cir. 2006); Ke Zhen Zhao, 265 F.3d at 90. As
discussed above, to the extent that this motion requested
reopening, the BIA did not abuse its discretion by denying
the motion for failure to show prejudice arising from the
alleged ineffective assistance.
For the foregoing reasons, the petitions for review are
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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