Mnadiruzzaman Shameem v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MNADIRUZZAMAN SHAMEEM, No. 14-73937
Petitioner, Agency No. A077-302-685
v.
MEMORANDUM*
JEFFERSON B. SESSIONS, III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2018**
Pasadena, California
Before: WATFORD and OWENS, Circuit Judges, and ZIPPS,*** District Judge.
The Board of Immigration Appeals (BIA) dismissed Mnadiruzzaman
Shameem’s appeal in December 2011. Shameem filed a timely petition for review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
Page 2 of 3
in this court, which was dismissed after his prior attorney failed to file a brief. A
year and a half later, Shameem filed a motion to reopen his administrative appeal,
which the BIA denied as time barred. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
§ 1003.2(c)(2). We have jurisdiction to review the BIA’s denial of an untimely
motion to reopen. See 8 U.S.C. § 1252; Mata v. Lynch, 135 S. Ct. 2150, 2154–55
(2015).
1. The BIA did not abuse its discretion by denying Shameem’s motion to
reopen, which alleged ineffective assistance of counsel, on procedural grounds.
See Ray v. Gonzales, 439 F.3d 582, 590 (9th Cir. 2006). To the extent that
Shameem contends that his attorney rendered ineffective assistance during
proceedings before the Immigration Judge (IJ), he failed to exhaust that claim
before the BIA. See Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995). His
exhausted claim—that his prior attorney should have introduced independent
evidence of past persecution on appeal to the BIA—fails on the merits. Even if we
put aside the fact that he does not identify what evidence his attorney failed to
present, Shameem cannot make the necessary showing of prejudice. See
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002). Additional evidence
of persecution would not have undermined the IJ’s adverse credibility
determination, which was supported by Shameem’s knowing use of a fraudulent
newspaper article. See Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010).
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2. The BIA has the authority to determine the scope of its discretion to hear
claims of ineffective assistance that arise after a removal order becomes final. See
In re Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009). Here, the BIA permissibly
declined to consider alleged ineffective assistance that occurred “in the course of
judicial proceedings” in this court because Shameem had the opportunity to file
(and in fact did file) a timely petition for review.
Shameem’s motion to take judicial notice is DENIED. See Fisher v. INS,
79 F.3d 955, 963 (9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED.