Kolodziejczyk v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: March 11, 2020
• Docket: 18-1442 (L)
• Status: Unpublished

Opinion

18-1442 (L) Kolodziejczyk v. Barr BIA A 098 692 668 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 11th day of March, two thousand twenty.

PRESENT: PETER W. HALL, SUSAN L. CARNEY, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

TOMASZ KOLODZIEJCZYK, Petitioner,

v. 18-1442 (L), 19-911 (Con)* NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gail A. Dulay, Esq., Los Angeles, CA.

* The Clerk of Court is directed to consolidate these appeals. FOR RESPONDENT: Tracie N. Jones, Trial Attorney; Cindy S. Ferrier, Assistant Director; Joseph H. Hunt, Assistant Attorney General, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

Petitioner Tomasz Kolodziejczyk, a native and citizen of

Poland, seeks review of a May 9, 2018 decision of the BIA

denying his motion to reopen his removal proceedings and a

March 14, 2019 decision of the BIA denying his motion to

reopen his removal proceedings or reconsider the prior denial

of reopening. In re Tomasz Kolodziejczyk, No. A 098 692 668

(B.I.A. May 9, 2018 & Mar. 14, 2019). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We review the agency’s denial of motions to reopen and

reconsider for abuse of discretion. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 168–69, 173 (2d Cir. 2008). “An abuse

of discretion may be found in those circumstances where the

[BIA’s] decision provides no rational explanation,

2 inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory

statements; that is to say, where the [BIA] has acted in an

arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t

of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations

omitted).

Reopening

With certain exceptions inapplicable here, an alien

seeking to reopen proceedings may file only one motion to

reopen and must do so no later than 90 days after the date on

which the final administrative decision was rendered.

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

Kolodziejczyk’s December 2017 and July 2018 motions to reopen

were untimely and number-barred because they were his second

and third motions to reopen and he filed them more than four

years after 2013, when the BIA affirmed the IJ’s removal

order.

Compliance with these time and number limitations may be

excused based on ineffective assistance of counsel. Rashid

v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To obtain

reopening on this basis, however, a movant must generally

comply with the procedural requirements set out in Matter of 3 Lozada, 19 I. & N. Dec. 637 (BIA 1988), and must show that

counsel’s actions were unreasonable and caused the movant

prejudice. See Debeatham v. Holder, 602 F.3d 481, 484–85 (2d

Cir. 2010); Rashid, 533 F.3d at 131.

Because Kolodziejczyk failed to substantially comply

with Lozada, we conclude that the agency did not abuse its

discretion in denying his second motion to reopen. Among

other things, Lozada requires the movant to submit “proof

that the [movant] notified former counsel of the allegations

of ineffective assistance and allowed counsel an opportunity

to respond.” Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005)

(quoting Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir.

1993)). “[I]f a violation of ethical or legal

responsibilities is claimed, [the movant must also submit] a

statement as to whether the [movant] filed a complaint with

any disciplinary authority . . . and, if a complaint was not

filed, an explanation for not doing so.” Id.

The BIA reasonably concluded that Kolodziejczyk did not

substantially comply with Lozada because he did not show that

he provided his former counsel sufficient opportunity to

respond and he did not file a complaint with the appropriate

disciplinary authorities. Kolodziejczyk now argues that he 4 could not wait for a response from his former counsel because

he was scheduled for removal when he filed his motion. This

argument is unavailing because nothing in the record suggests

that he was prevented from contacting counsel sooner.

Kolodziejczyk does not dispute the BIA’s conclusion that his

failure to file a disciplinary complaint alone precludes him

from establishing substantial compliance. Moreover, his

arguments to the agency regarding his decision to defer filing

such a complaint suggest that he was not sure whether his

counsel’s conduct was in fact deficient.

Although we have found on occasion substantial compliance

with Lozada when the facts supporting the ineffective

assistance claim were “clear on the face of the record,” Yi

Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007), that

is not the case here. To the extent that Kolodziejczyk argues

that counsel was ineffective for failing to file a motion to

remand in the BIA, his argument is unavailing because he was

represented by a different and unrelated attorney in that BIA

appeal. His argument that counsel was ineffective for

failing to advise him to file such a motion also fails.

Kolodziejczyk is correct that he could have moved to remand

proceedings on the basis of his second wife’s pending 5 immediate-relative visa petition (before the agency’s

approval of that petition) and without moving jointly with

the Department of Homeland Security (“DHS”). In re Velarde-

Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see Melnitsenko

v. Mukasey, 517 F.3d 42, 49 (2d Cir. 2008) (under Velarde-

Pacheco, a motion to reopen to pursue adjustment may be

granted prior to the adjudication of the visa petition filed

on the applicant’s behalf); Matter of Lamus-Pava, 25 I. & N.

Dec. 61, 64–65 (BIA 2009) (Velarde-Pacheco “does not grant

the DHS ‘veto’ power over an otherwise approvable Velarde

motion”). The grant of such a motion is a matter of BIA

discretion, however. It requires “clear and convincing

evidence indicating a strong likelihood that the [movant’s]

marriage is bona fide,” and it may take DHS opposition to the

motion into account. In re Velarde-Pacheco, 23 I. & N. Dec.

at 256; Matter of Lamus-Pava, 25 I. & N. Dec. at 64–65. Given

these standards, the BIA did not abuse its discretion in

concluding that a reasonable attorney could have made a

strategic decision to wait to take further action until the

visa petition was approved and to attempt then to obtain a

DHS stipulation to reopening in light of Kolodziejczyk’s

6 prior unsuccessful attempt to adjust status.1

For similar reasons, the BIA did not abuse its discretion

in denying Kolodziejczyk’s third motion to reopen for failure

to establish that he was prejudiced by his prior counsel’s

actions. To establish the required prejudice, a movant must

show that “the outcome of his removal proceedings would have

been any different” had counsel acted differently.

Debeatham, 602 F.3d at 486. Kolodziejczyk argues that he

would have been able to present clear and convincing evidence

that his second marriage was bona fide, as required by

Velarde-Pacheco. Even if this were the case, in light of the

procedural history of this case, we cannot say that the agency

abused its discretion in finding it “speculative” that

Kolodziejczyk would have received a favorable discretionary

decision by the BIA on a motion to reopen his case before the

approval of his wife’s visa petition.

Reconsideration

1 Contrary to Kolodziejczyk’s argument, the agency did not draw an improper adverse inference from his prior marriage. Instead, the agency identified the history of his prior application to adjust status as one reason that counsel might have determined that Kolodziejczyk would obtain a strategic benefit by waiting for his visa petition to be approved and obtaining a stipulation from DHS before moving to reopen. 7 Finally, the BIA did not abuse its discretion in denying

reconsideration of its denial of Kolodziejczyk’s second

motion to reopen. A motion for reconsideration must specify

errors of fact or law in the BIA’s decision and be supported

by pertinent authority. The BIA does not abuse its

discretion by denying a motion to reconsider that merely

repeats arguments previously rejected by the agency. See 8

C.F.R. § 1003.2(b)(1); Jin Ming Liu v. Gonzales, 439 F.3d

109, 111 (2d Cir. 2006); Ke Zhen Zhao, 265 F.3d at 90. As

discussed above, to the extent that this motion requested

reopening, the BIA did not abuse its discretion by denying

the motion for failure to show prejudice arising from the

alleged ineffective assistance.

For the foregoing reasons, the petitions for review are

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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