Eldemerdash v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: September 9, 2020
• Docket: 18-1956
• Status: Unpublished

Opinion

18-1956 Eldemerdash v. Barr BIA A061 905 354 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 9th day of September, two thousand twenty.

PRESENT: SUSAN L. CARNEY, MICHAEL H. PARK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

MOHAMED KHALED ELDEMERDASH, AKA MOHAMMED ELDEMERDASH, AKA MOHAMMED KHALED EL DEMERDASH, Petitioner,

v. 18-1956 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Kareem El Nemr, Esq., Astoria, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Jessica E. Burns, Senior Litigation Counsel, Edward C. Durant, Attorney, 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 Mohamed Khaled Eldemerdash, a native and

citizen of Egypt, seeks review of a June 14, 2018 decision of

the BIA denying his motion to reopen. In re Mohamed Khaled

Eldemerdash, No. 061 905 354 (B.I.A. June 14, 2018). We

assume the parties’ familiarity with the underlying facts and

procedural history.

Because Eldemerdash timely petitioned for review only of

the BIA’s June 2018 decision denying his motion to reopen,

our review is limited to that decision, and we may not

consider the agency’s underlying decision denying his

petition to remove the conditions on his residence.

See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-–

90 (2d Cir. 2001). We review the denial of

a motion to reopen for abuse of discretion. See Jian Hui

Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

“A motion to reopen proceedings shall not be granted unless

it appears to the Board that evidence sought to be offered is 2 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); Norani v. Gonzales, 451 F.3d 292, 294 (2d

Cir. 2006) (“[I]n reviewing the BIA’s determination of

whether previously unavailable evidence supported [a] motion

to reopen, we must inquire whether the evidence could have

been presented at the hearing before the IJ.”).

The BIA did not err in determining that Eldemerdash

failed to establish that the evidence he submitted with his

motion to reopen was previously unavailable. Eldemerdash’s

documents consisted of a log of calls between himself and his

former wife in 2009, emails between himself and his former

wife from 2009 to 2010, a 2013 divorce decree, his former

wife’s 2015 death certificate, and documents showing he lived

in North Carolina—where his former wife had lived—in 2011.

All of this evidence predated his 2016 hearing and he conceded

in his motion to reopen that the evidence was available, but

that his previous attorney had failed to submit it. To the

extent he argues that the failure to present the evidence

earlier should be excused because of ineffective assistance

of counsel, he forfeited that argument by failing to make any

effort to comply with the procedural requirements for an

3 ineffective assistance claim set forth in Matter of Lozada,

19 I. & N. Dec. 637 (B.I.A. 1988). See 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 [his] motion to reopen before the BIA forfeits

[his] ineffective assistance of counsel claim in this

Court.”). Eldemerdash’s failure to present new, previously

unavailable evidence is dispositive, and we do not reach the

BIA’s alternative discussion of his prima facie eligibility

for a waiver of the joint petition requirement. See INS v.

Abudu, 485 U.S. 94, 104–05 (1988) (listing three independent

grounds for denial of a motion to reopen: failure to show

prima facie eligibility for relief; failure to present new,

previously unavailable evidence, and in cases involving

discretionary relief, a failure to show relief is warranted

as matter of discretion); INS v. Bagamasbad, 429 U.S. 24, 25

(1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is

unnecessary to the results they reach.”). Finally,

Eldemerdash did not exhaust his argument that his divorce was

not valid for immigration purposes or show how, absent a

divorce, he met the requirements to remove the conditions on

4 his status. See Lin Zhong v. U.S. Dep’t of Justice,

480 F.3d 104, 122–23 (2d Cir. 2007) (holding that we are

generally limited to review of issues raised before the

agency).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court