Perla v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: February 12, 2020
• Docket: 18-109
• Status: Unpublished

Opinion

18-109 Perla v. Barr BIA Sichel, IJ A094 100 352 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 12th day of February, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

JOSE R. PERLA, Petitioner,

v. 18-109 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel, Jesse Lloyd Busen, 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 Jose R. Perla, a native and citizen of El

Salvador, seeks review of a December 21, 2017, decision of

the BIA affirming a May 11, 2017, decision of an Immigration

Judge (“IJ”) denying Perla’s motion to reopen. In re Jose

R. Perla, No. A 094 100 352 (B.I.A. Dec. 21, 2017), aff’g No.

A 094 100 352 (Immig. Ct. N.Y. City May 11, 2017). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

We review a denial of a motion to reopen for abuse of

discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69

(2d Cir. 2008). The agency did not abuse its discretion in

declining to reopen because Perla did not present new evidence

that was previously unavailable. See INS v. Abudu, 485 U.S.

94, 104 (1988); see also 8 C.F.R. § 1003.23(b)(3) (“A motion

to reopen will not be granted unless the Immigration Judge is

satisfied that evidence sought to be offered is material and 2 was not available and could not have been discovered or

presented at the former hearing.”). Perla attached to his

motion to reopen an asylum officer’s 1998 notes and a 2011

BIA decision temporarily suspending his former counsel from

practicing before the BIA. Both of these documents predated

Perla’s 2016 immigration proceedings. Perla argues that

these documents were unavailable to him because he did not

have notice that his credibility was in question. However,

the record reflects that he was questioned about

inconsistencies at his hearing and thus was on notice that

his credibility was at issue. Moreover, Perla had “the

ultimate burden of introducing [corroborating] evidence

without prompting from the IJ.” Chuilu Liu v. Holder, 575

F.3d 193, 198 (2d Cir. 2009).

To the extent that Perla moved to reopen based on

ineffective assistance of counsel, the agency correctly found

that he failed to comply with the procedural requirements set

forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).

Perla failed to provide an affidavit detailing his agreement

with his former counsel, show that he informed his prior

counsel of his allegations, and explain why he did not file

3 any complaints against his attorney. See id. at 639. Perla

is incorrect that Matter of Compean, 24 I. & N. Dec. 710 (A.G.

2009), overruled Matter of Lozada because the Attorney

General vacated Matter of Compean and held that the agency

“should apply the pre-Compean standards to all pending and

future motions to reopen based upon ineffective assistance of

counsel, regardless of when such motions were filed.” Matter

of Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009). Accordingly,

Perla has forfeited his ineffective assistance of counsel

claim. Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,

47 (2d Cir. 2005) (holding that “alien who has failed to

comply substantially with the Lozada requirements . . . before

the BIA forfeits h[is] ineffective assistance of counsel

claim in this Court”).

Lastly, Perla’s remaining arguments are not properly

before this Court. His petition is timely only as to the

denial of the motion to reopen, not the underlying decision

ordering him removed and denying cancellation of removal.

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

90 (2d Cir. 2001). Accordingly, we are precluded from

reviewing his challenges to the merits of the adverse

4 credibility determination and the actions of the asylum

officer prior to his 2001 removal order.

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