Mnadiruzzaman Shameem v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2018
• Docket: 14-73937
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MNADIRUZZAMAN SHAMEEM, No. 14-73937

Petitioner, Agency No. A077-302-685

v. MEMORANDUM* JEFFERSON B. SESSIONS, III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 12, 2018** Pasadena, California

Before: WATFORD and OWENS, Circuit Judges, and ZIPPS,*** District Judge.

The Board of Immigration Appeals (BIA) dismissed Mnadiruzzaman

Shameem’s appeal in December 2011. Shameem filed a timely petition for review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jennifer G. Zipps, United States District Judge for the District of Arizona, sitting by designation. Page 2 of 3

in this court, which was dismissed after his prior attorney failed to file a brief. A

year and a half later, Shameem filed a motion to reopen his administrative appeal,

which the BIA denied as time barred. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

§ 1003.2(c)(2). We have jurisdiction to review the BIA’s denial of an untimely

motion to reopen. See 8 U.S.C. § 1252; Mata v. Lynch, 135 S. Ct. 2150, 2154–55

(2015).

1. The BIA did not abuse its discretion by denying Shameem’s motion to

reopen, which alleged ineffective assistance of counsel, on procedural grounds.

See Ray v. Gonzales, 439 F.3d 582, 590 (9th Cir. 2006). To the extent that

Shameem contends that his attorney rendered ineffective assistance during

proceedings before the Immigration Judge (IJ), he failed to exhaust that claim

before the BIA. See Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995). His

exhausted claim—that his prior attorney should have introduced independent

evidence of past persecution on appeal to the BIA—fails on the merits. Even if we

put aside the fact that he does not identify what evidence his attorney failed to

present, Shameem cannot make the necessary showing of prejudice. See

Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002). Additional evidence

of persecution would not have undermined the IJ’s adverse credibility

determination, which was supported by Shameem’s knowing use of a fraudulent

newspaper article. See Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010). Page 3 of 3

2. The BIA has the authority to determine the scope of its discretion to hear

claims of ineffective assistance that arise after a removal order becomes final. See

In re Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009). Here, the BIA permissibly

declined to consider alleged ineffective assistance that occurred “in the course of

judicial proceedings” in this court because Shameem had the opportunity to file

(and in fact did file) a timely petition for review.

Shameem’s motion to take judicial notice is DENIED. See Fisher v. INS,

79 F.3d 955, 963 (9th Cir. 1996) (en banc).

PETITION FOR REVIEW DENIED.