Lukaj v. McHenry

• Court: Court of Appeals for the Second Circuit
• Decided: January 31, 2025
• Docket: 22-6435
• Status: Unpublished

Opinion

22-6435 Lukaj v. McHenry BIA Brennan, IJ A206 494 848

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of January, two thousand twenty-five.

PRESENT: RICHARD C. WESLEY, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________

LIZE LUKAJ, Petitioner,

v. 22-6435 NAC JAMES R. MCHENRY III, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Adrian Spirollari, Brooklyn, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel; Shahrzad Baghai, Trial 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 Lize Lukaj, a native and citizen of Albania, seeks review of an

August 12, 2022 decision of the BIA that affirmed a June 3, 2019 decision of an

Immigration Judge (“IJ”) denying her application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). In re Lize

Lukaj, No. A206 494 848 (B.I.A. Aug. 12, 2022), aff’g No. A206 494 848 (Immigr. Ct.

N.Y.C. June 3, 2019). We assume the parties’ familiarity with the underlying facts

and procedural history.

I. Asylum, Withholding of Removal, and CAT Relief

Lukaj does not challenge the specific inconsistency or corroboration

findings that formed the basis for the IJ’s adverse credibility determination. “We

consider abandoned any claims not adequately presented in an appellant’s brief, 2 and an appellant’s failure to make legal or factual arguments constitutes

abandonment.” Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (quotation

marks omitted); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.

2005) (declining to consider a claim of persecution that petitioner raised in only a

conclusory manner). We thus deny the petition as to asylum, withholding of

removal, and CAT relief because the adverse credibility determination was

dispositive. See Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (“Where the

same factual predicate underlies a petitioner’s claims for asylum, withholding of

removal, and protection under the CAT, an adverse credibility determination

forecloses all three forms of relief.”).

II. Ineffective Assistance of Counsel

The agency did not err in denying Lukaj’s request to reopen proceedings

based on ineffective assistance of counsel because she failed to comply with the

procedural requirements for such a claim announced in Matter of Lozada, 19 I. & N.

Dec. 637 (B.I.A. 1988). Under Lozada, a petitioner is required to file an affidavit

detailing her agreement with former counsel, submit proof that she notified

former counsel and gave former counsel an opportunity to respond, and provide

a statement as to whether she filed a complaint with any disciplinary authority of

3 her allegations and, if she did not file such complaint, an explanation for not doing

so. See Debeatham v. Holder, 602 F.3d 481, 484–86 (2d Cir. 2010). Failure to

substantially comply with the Lozada requirements constitutes forfeiture of an

ineffective assistance claim. See Jian Yun Zheng v. U.S. Dep’t of Just., 409 F.3d 43,

46–47 (2d Cir. 2005).

Lukaj argued before the BIA that her prior counsel did not properly prepare

her case. But Lukaj failed to provide an affidavit detailing her agreement with

her former counsel, show that she informed her prior counsel of her allegations,

or explain why she did not file a complaint against her former counsel. Although

we require only “substantial compliance” with Lozada, Lukaj did not comply at all.

Yi Long Yang v. Gonzales, 478 F.3d 133, 142–43 (2d Cir. 2007). And Lukaj has not

demonstrated that her noncompliance should be excused (i.e., she does not explain

how she was unprepared for her hearing or present evidence of the alleged

neurological problems that she claims counsel should have submitted). The

alleged ineffectiveness is not clear from the record because it is unknown whether

the missing evidence exists or could have been obtained. See id. at 143 (“Lozada

requirements . . . provide a basis for determining whether counsel’s assistance was

in fact ineffective.” (quotation marks omitted)). Accordingly, Lukaj has forfeited

4 her ineffective assistance of counsel claim because she did not comply with the

Lozada requirements or show that ineffective assistance was “clear on the face of

the record.” Id.; see also Jian Yun Zheng, 409 F.3d at 47.

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