Hasan v. Barr ( 2020 )

17-2379
Hasan v. Barr
BIA
A031 209 522
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 29th day of April, two thousand
twenty.
PRESENT:
RALPH K. WINTER,
RICHARD C. WESLEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
KAZI ABUL HASAN,
Petitioner,
v. 17-2379
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: PAUL B. GROTAS, New York, NY.
FOR RESPONDENT: AARON D. NELSON, Trial Attorney (Chad A.
Readler, Acting Assistant Attorney General;
Terri J. Scadron, Assistant Director, on the
brief), 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 Kazi Abul Hasan, a native and citizen of Bangladesh, seeks review
of a July 25, 2017 decision of the BIA denying his motion to (1) reconsider dismissal
of his appeal of the Immigration Judge’s final order of removal, and (2) reopen his
removal proceedings. In re Kazi Abul Hasan, No. A 031 209 522 (BIA July 25, 2017).
We assume the parties’ familiarity with the underlying facts and procedural
history in this case.
As an initial matter, because Hasan has timely petitioned for review of the
denial of a motion to reconsider and reopen, but not from the underlying decision
for which reconsideration was sought, we may review only the denial of his
motion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001).
Our jurisdiction to review a final order of removal, including an order denying a
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motion to reconsider and reopen, against an alien such as Hasan who is removable
for a controlled substance offense is limited to constitutional claims and questions
of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D); Santos-Salazar v. U.S. Dep’t of Justice, 400
F.3d 99, 103 (2d Cir. 2005) (providing that criminal jurisdictional bars apply
equally to denials of motions to reconsider); Durant v. U.S. INS, 393 F.3d 113, 115
(2d Cir. 2004) (same for motions to reopen). We review constitutional claims and
questions of law de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). For
jurisdiction to attach, however, such claims must be colorable. Barco-Sandoval v.
Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008).
Motion to Reconsider
Hasan has not raised a colorable question of law or constitutional claim
regarding the BIA’s denial of reconsideration. “A motion for reconsideration is a
request that the [BIA] reexamine its decision in light of additional legal arguments,
a change of law, or perhaps an argument or aspect of the case which was
overlooked.” Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (internal
quotation marks and citation omitted); see also 8 U.S.C. § 1229a(c)(6)(C) (“The
motion shall specify the errors of law or fact in the previous order and shall be
supported by pertinent authority.”); 8 C.F.R. § 1003.2(b)(1) (same). The BIA
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determined that Hasan’s motion to reconsider did not identify any issue that was
not considered in the BIA’s January 2017 decision or any error of fact or law.
Hasan has not raised a colorable question of law or constitutional claim
challenging this BIA finding. See Barco-Sandoval, 516 F.3d at 40–41. Accordingly,
we lack jurisdiction to review the denial of reconsideration. See 8 U.S.C.
§§ 1252(a)(2)(C), (D); Barco-Sandoval, 516 F.3d at 40–41.
Motion to Reopen
“[A] motion to reopen shall state the new facts that will be proven at a
hearing to be held if the motion is granted, and shall be supported by affidavits or
other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). “A
motion to reopen proceedings shall not be granted unless . . . that evidence sought
to be offered is 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); see also INS v. Abudu,
485 U.S. 94, 104 (1988) (finding that BIA may deny a motion to reopen if “the
movant has not introduced previously unavailable, material evidence”).
Ineffective assistance is a basis for reopening. Iavorski v. U.S. INS, 232 F.3d 124,
129 (2d Cir. 2000) (“[T]he vehicle commonly used to redress claims of ineffective
assistance of counsel in deportation proceedings has been an administrative
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motion to reopen proceedings.”). To obtain reopening based on ineffective
assistance of counsel, a movant must comply with the procedural requirements set
out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998), and must show both that
counsel’s actions were unreasonable and that those actions caused prejudice. See
Debeatham v. Holder, 602 F.3d 481, 484–85 (2d Cir. 2010); Rashid v. Mukasey, 533 F.3d
127, 131 (2d Cir. 2008).
Hasan has raised a colorable question of law sufficient to invoke our
jurisdiction: whether the BIA’s decision is without “rational explanation” and
whether it overlooked evidence that he could not have previously submitted his
waiver application because of ineffective assistance. The agency may commit
legal error when its discretionary decision “was made without rational
justification,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006),
and fact-finding may be flawed by an error of law when “facts important to [the
discretionary] determination . . . have been totally overlooked and others have
been seriously mischaracterized,” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).
Nonetheless, we find that the BIA did not abuse its discretion in denying
Hasan’s motion to reopen. On appeal to the BIA, Hasan, then represented by his
son, moved to remand the case to the Immigration Judge on the basis that his
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former counsel was ineffective. The BIA denied that motion, finding that Hasan
failed to comply with Lozada and offered no evidence that he was prejudiced by
his former counsel’s actions. In his motion to reopen, Hasan again argued that
his former counsel was ineffective, although this time he submitted evidence of
what can arguably be considered Lozada compliance along with previously-
existing evidence supporting his eligibility for relief. In denying this motion, the
BIA noted that Hasan did not dispute that he had known he needed to file the
appropriate application form and supporting evidence since approximately March
2012, yet pointed only to his “son’s claimed lack of experience in immigration
matters” to explain his failure to do so at any point prior, including in support of
his motion to remand. App’x 3. Notably, Hasan does not argue that his son
provided ineffective assistance before the BIA. Thus, we find that the BIA did not
act unreasonably in concluding that, on these facts, Hasan was not entitled to a
second bite at the apple. See Jin Ming Liu, 439 F.3d at 111 (“The BIA does not
abuse its discretion by denying a motion to reconsider where the motion repeats
arguments that the BIA has previously rejected.”); cf. 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 her motion to reopen before the BIA
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forfeits her ineffective assistance of counsel claim in this Court.”). Accordingly,
the BIA did not abuse its discretion in denying Hasan’s motion to reopen.
For the foregoing reasons, the petition for review is DENIED, and Hasan’s
motion for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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