Islam v. Holder

10-2218-ag
Islam v. Holder
BIA
A096 426 163
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16th day of August, two thousand eleven.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_______________________________________
MOHAMMAD ISLAM
Petitioner,
v. 10-2218-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Heidi J. Meyers, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Terri J. Scadron, Assistant Director;
Colin J. Tucker, Trial Attorney,
Office of Immigration Litigation,
Civil Division, U.S. Department of
Justice, Washington, D.C.
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 Mohammad Islam, a native and citizen of
Bangladesh, seeks review of a May 13, 2010, order of the BIA
denying his motion to reopen. In re Mohammad Akhterul Islam,
No. A096 426 163 (B.I.A. May 13, 2010). 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. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). As an initial matter, we note that we are
unable to address Islam’s argument that he established his
eligibility for cancellation of removal in his original
proceedings or that the BIA’s review of those proceedings was
inadequate, as our review is limited to the BIA’s denial of
the motion to reopen and we are “precluded from passing on the
merits of the underlying [removal] proceedings.” Paul v.
Gonzales, 444 F.3d 148, 153 (2d Cir. 2006) (citation and
internal quotation marks omitted).
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Islam’s motion argued that he had been prejudiced by the
ineffective assistance of his former counsel who had, inter
alia, failed to prepare him (Islam) and his wife for the
hearing on his application for cancellation of removal and
prepared inadequate corroboration of his continuous presence
in the United States from 1993 to 2003. To demonstrate
ineffective assistance of counsel, an alien must show “that
competent counsel would have acted otherwise, and hat he was
prejudiced by his counsel’s performance.” Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994) (internal quotation marks
omitted); see also Cekic v. INS, 435 F.3d 167, 171 (2d Cir.
2006).
Islam contended that his counsel was ineffective because
he gave Islam only “basic guidelines” regarding what evidence
was needed to establish continuous physical presence, that he
did not specify what documents should be supplied, and did not
correct allegedly erroneous information supplied by an
accountant. The BIA analyzed each of these allegations and
reasonably concluded that they did not establish ineffective
assistance of counsel.
In addition, the BIA concluded that Islam had not shown
that he was prejudiced by his counsel’s alleged
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ineffectiveness. The BIA did not explain what standard it
used to determine that Islam was not prejudiced by his
counsel’s alleged failures. In Vartelas v. Holder, 620 F.3d
108, 113-15 (2d Cir. 2010), we noted that the BIA has not
adopted a single standard for determining whether an alien has
shown prejudice. More recently, the BIA issued a precedential
decision stating that in the Ninth Circuit “prejudice exists
when the performance of counsel is so inadequate that there is
a reasonable probability that but for the attorney’s
negligence, the outcome of the proceedings may have been
different.” Matter of D-R-, 25 I. & N. Dec. 445, --- (BIA
2011) (citing Maravilla Maravilla v. Ashcroft, 381 F.3d 855,
858 (9th Cir. 2004)). In Vartelas, we determined that “we
need not determine which of the standards of prejudice
applie[d]” because “Vartelas ha[d] failed to show prejudice
under any standard.” 620 F.3d at 115. That is true in this
case as well.
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,
any pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
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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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