Farid v. Barr

Opinion

17-2969 Farid v. Barr BIA

Lamb, IJ

A079 713 969

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of July, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 MUHAMMAD ABDUL FARID, AKA 14 MOHAMMAD ABDUL FAREED, 15 16 Petitioner, 17 18 v. 17-2969 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Sanjay Chaubey, New York, NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant

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1 Attorney General; Keith I. 2 McManus, Assistant Director; 3 Rosanne M. Perry, Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of 6 Justice, Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED in part and DISMISSED in part. 12 Petitioner Muhammad Abdul Farid, a native and citizen of 13 Pakistan, seeks review of an August 25, 2017 decision of the 14 BIA affirming a March 13, 2017 decision of an Immigration 15 Judge (“IJ”) denying his motion to reopen. In Muhammad Abdul 16 Farid, No. A079 713 969 (B.I.A. Aug. 25, 2017), aff’g No. 17 A079 713 969 (Immig. Ct. N.Y. City Mar. 13, 2017). We assume 18 the parties’ familiarity with the underlying facts and 19 procedural history in this case, and the issues on appeal. 20 Under the circumstances of this case, we have reviewed 21 the IJ’s decision as supplemented by the BIA. See Yan Chen 22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the 23 agency’s denial of a motion to reopen for abuse of discretion. 24 Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). An alien 25 generally may file one motion to reopen no later than 90 days 26 after the final administrative decision is rendered.

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1 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. §§ 1003.2(c)(2), 2 1003.23(b)(1). It is undisputed that Farid’s motion was 3 untimely because he filed it more than ten years after an IJ 4 ordered him removed. As discussed below, he failed to 5 establish that either ineffective assistance of counsel or 6 lack of notice excused his late filing. 7 Ineffective Assistance 8 An untimely motion to reopen may be excused based on 9 ineffective assistance of counsel. Rashid v. Mukasey, 533 10 F.3d 127, 130 (2d Cir. 2008). To prevail on an ineffective 11 assistance claim, an alien must substantially comply with the 12 procedural requirements set forth in Matter of Lozada, 19 I. 13 & N. Dec. 637 (BIA 1988), which include setting forth the 14 agreement with former counsel, notifying former counsel of 15 the allegations, and filing a complaint with a disciplinary 16 authority. See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). 17 “[A]n alien who has failed to comply substantially with the 18 Lozada requirements in h[is] motion to reopen before the BIA 19 forfeits h[is] ineffective assistance of counsel claim in 20 this Court.” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 21 F.3d 43, 47 (2d Cir. 2005). 22 Farid alleged that his former counsel failed to inform

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1 him of his removal order. Because Farid concedes that he did 2 not satisfy any of the procedural requirements, he has 3 forfeited this ineffective assistance claim. Id. Although 4 he argues that he was not required to comply because the 5 ineffective assistance is clear from the record, the record 6 belies this claim. See Yi Long Yang v. Gonzales, 478 F.3d 7 133, 143 (2d Cir. 2007) (finding substantial compliance with 8 Lozada when relevant facts were clear on record, IJ explicitly 9 relied on counsel’s competence, and counsel was “subsequently 10 disbarred for malpractice as an immigration attorney”). The 11 record reflects that Farid had personal notice of his October 12 2006 hearing because the date was set at a prior hearing at 13 which he was present. Moreover, as the BIA found, there is 14 nothing in the 2006 removal order to indicate that it was 15 entered in absentia, reflecting that Farid was also present 16 when the oral decision was read. Farid also argues that he 17 could not comply with Lozada because he did not know his prior 18 counsel’s name or address, but counsel’s name and address 19 were listed on a hearing notice and therefore were available 20 to Farid. 21 Notice of Hearing 22 Nonetheless, assuming arguendo that the order was entered

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1 in absentia, the 90-day time limitation may still be excused 2 if Farid did not receive proper notice of his hearing. See 3 8 U.S.C. § 1229a(b)(5)(C)(ii). However, the hearing notice 4 in the record reflects that it was provided in writing at the 5 hearing and that Farid was given oral notice in a language he 6 understood. See Certified Administrative Record at 85-86. 7 Such notice is sufficient. See 8 U.S.C. § 1229(a)(2)(A) 8 (written notice provided in person specifying time and place 9 of new hearing sufficient). 10 Sua Sponte Reopening 11 Although the agency has the authority to reopen an 12 immigration proceeding sua sponte even if the motion is 13 untimely, 8 C.F.R. § 1003.2(a); 8 C.F.R. § 1003.23(b)(1), we 14 lack jurisdiction to review the agency’s “entirely 15 discretionary” decision not to exercise that authority, Ali, 16 448 F.3d at 518. Although we may remand if the agency 17 “misperceived the legal background and thought, incorrectly, 18 that a reopening would necessarily fail,” that exception does 19 not apply here because the agency simply found that Farid did 20 not present exceptional circumstances that would warrant 21 reopening. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 22 2009); see In re J-J-, 21 I. & N. Dec. 976, 984 (BIA

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1 1997) (“The power to reopen on our own motion is not meant to 2 be used as a general cure for filing defects or to otherwise 3 circumvent the regulations, where enforcing them might result 4 in hardship.”). 5 For the foregoing reasons, the petition for review is 6 DENIED in part and DISMISSED in remaining part. As we have 7 completed our review, any stay of removal that the Court 8 previously granted in this petition is VACATED, and any 9 pending motion for a stay of removal in this petition is 10 DISMISSED as moot. Any pending request for oral argument in 11 this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 13 34.1(b).

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe 16 Clerk of Court