Ze Fei Fang v. Holder

09-3489-ag
Fang v. Holder
BIA
A 098 413 670
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of April, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 ______________________________________
12
13 ZE FEI FANG,
14 Petitioner,
15 09-3489-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Yu Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Michelle
27 Gorden Latour, Assistant Director;
28 Timothy G. Hayes, Trial Attorney,
29 Office of Immigration Litigation,
30 Civil Division, United States
31 Department of Justice, Washington,
32 D.C.
331 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Ze Fei Fang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 20, 2009
7 order of the BIA denying his motion to reopen and
8 reconsider. In re Ze Fei Fang, No. A 098 413 670 (B.I.A.
9 July 20, 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 As a preliminary matter, we are without jurisdiction to
12 consider Fang’s challenge to the BIA’s October 2007 decision
13 denying his application for asylum and withholding of
14 removal because he failed to file a timely petition for
15 review of that decision. See 8 U.S.C. § 1252(b)(1); see
16 also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-
17 90 (2d Cir. 2001). Therefore, the only issue properly
18 before us is whether the BIA abused its discretion in
19 denying Fang’s motion to reopen based on the alleged
20 ineffective assistance of his former attorney.
21 We review the BIA’s denial of a motion to reopen for
22 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
2
1 Cir. 2006). Under Matter of Lozada, 19 I. & N. Dec. 6372 (B.I.A. 1988), an alien seeking to raise a claim for
3 ineffective assistance of counsel must file a motion with
4 the agency, including:
5 (1) an affidavit setting forth in detail the
6 agreement with former counsel concerning what
7 action would be taken and what counsel did or did
8 not represent in this regard; (2) proof that the
9 alien notified former counsel of the allegations
10 of ineffective assistance and allowed counsel an
11 opportunity to respond; and (3) if a violation of
12 ethical or legal responsibilities is claimed, a
13 statement as to whether the alien filed a
14 complaint with any disciplinary authority
15 regarding counsel’s conduct and, if a complaint
16 was not filed, an explanation for not doing so.
17
18 Twum v. I.N.S., 411 F.3d 54, 59 (2d Cir. 2005); Esposito v.
19 I.N.S., 987 F.2d 108, 110-11 (2d Cir. 1993) (citing Lozada,
20 19 I. & N. Dec. at 639). Here, the BIA found that Fang
21 failed to comply with Lozada’s “complaint requirements.”
22 Specifically, the BIA stated that Fang failed to file a
23 disciplinary complaint against his former attorney and
24 failed to provide an explanation for such failure. Fang
25 does not dispute this finding but instead argues that it
26 should not be fatal to his claim because he exercised due
27 diligence, informed his attorney of the issue, and gave him
28 an opportunity to rectify the situation. However, we have
29 held that an alien’s failure to comply with the Lozada
3
1 requirements constitutes forfeiture of the ineffective
2 assistance claim, and such a failure is thus a proper ground
3 on which the BIA may deny a motion to reopen. See Jian Yun
4 Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.
5 2005); cf. Piranej v. Mukasey, 516 F.3d 137, 142-45 (2d Cir.
6 2008) (holding that evidence of a general retainer agreement
7 may be sufficient to satisfy the first Lozada requirement).
8 As to Fang’s contention that he exercised due diligence, the
9 BIA noted that Fang failed to establish the date that he
10 became aware of any alleged ineffective assistance of
11 counsel, and, thus, that Fang is unable to demonstrate
12 whether he exercised due diligence in pursuing his motion to
13 reopen. See Jian Hua Wang v. B.I.A., 508 F.3d 710, 715 (2d
14 Cir. 2007) (rejecting petitioner’s claim of due diligence
15 where he failed to “establish[] in the written record . . .
16 what measures he took to reopen his case”).
17 In light of the BIA’s findings that Fang failed to
18 comply with Lozada and to demonstrate the exercise of due
19 diligence, the BIA’s decision denying his motion to reopen
20 was not “arbitrary or capricious.” Ke Zhen Zhao, 265 F.3d
21 at 93.
22 For the foregoing reasons, the petition for review is
4
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
5