22-6043 Tupikin v. Garland BIA Conroy, IJ A215 928 942
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 12th day of July, two thousand twenty- 4 three. 5 6 PRESENT: 7 JON O. NEWMAN, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 NIKOLAY VLADIMIROVICH TUPIKIN, 14 Petitioner, 15 16 v. 22-6043 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: B. Alan Seidler, Esq., New York, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Cindy S. Ferrier, Assistant 3 Director; Sarai M. Aldana, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Nikolay Vladimirovich Tupikin, a native and citizen of Russia,
11 seeks review of a December 29, 2021, decision of the BIA affirming a June 30, 2021,
12 decision of an Immigration Judge (“IJ”) insofar as it denied relief under the
13 Convention Against Torture (“CAT”).1 In re Nikolay Vladimirovich Tupikin, No. A
14 215 928 942 (B.I.A. Dec. 29, 2021), aff’g No. A 215 928 942 (Immig. Ct. N.Y. City June
15 30, 2021). We assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 Tupikin challenges the agency’s denial of a continuance and raises an
18 ineffective assistance of counsel claim.
19 The Government asserts that our jurisdiction to review the denial of a
1 Tupikin did not challenge the denial of asylum and withholding of removal before the BIA and does not address those forms of relief in his brief here. 2 1 continuance is limited to constitutional claims and questions of law. Generally,
2 where, as here, a petitioner has been ordered removed for an aggravated felony,
3 our jurisdiction is so limited. See 8 U.S.C. § 1252(a)(2)(C), (D). However, this
4 jurisdictional limitation on our review of removal orders based on criminal
5 grounds does not apply to review of CAT claims. See Nasrallah v. Barr, 140 S. Ct.
6 1683, 1689–92 (2020). This is because CAT orders “are not themselves final orders
7 of removal and do not affect the final validity of such orders.” Quintanilla-Mejia
8 v. Garland, 3 F.4th 569, 583 (2d Cir. 2021). Because Tupikin challenges the
9 agency’s denial of a continuance to present additional evidence in support of his
10 CAT claim, the jurisdictional bar likely does not apply. Id.; see also Ivanishvili v.
11 U.S. Dep't of Just., 433 F.3d 332, 338 n.2 (2d Cir. 2006) (“Our assumption of
12 jurisdiction to consider first the merits is not barred where the jurisdictional
13 constraints are imposed by statute, not the Constitution, and where the
14 jurisdictional issues are complex and the substance of the claim is, as here, plainly
15 without merit.”). Moreover, while 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial
16 review of certain discretionary agency decisions, “the decision by an IJ or the BIA
17 to grant or to deny a continuance in an immigration proceeding is not [such] a
18 decision.” Sanusi v. Gonzales, 445 F.3d 193, 198 (2d Cir. 2006). Accordingly, we
3 1 review the denial of the motion for a continuance for abuse of discretion. Id. at
2 199.
3 The agency did not abuse its discretion. An IJ “may grant a motion for
4 continuance for good cause shown.” 8 C.F.R. § 1003.29. “IJs are accorded wide
5 latitude in calendar management, and we will not micromanage their scheduling
6 decisions any more than when we review such decisions by district judges.
7 Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). “The agency abuses its
8 discretion when its decision rests on an error of law or a clearly erroneous factual
9 finding or cannot be located within the range of permissible decisions.” Garcia v.
10 Garland, 64 F.4th 62, 69 (2d Cir. 2023) (quotation marks and ellipses omitted).
11 DHS commenced removal proceedings on March 19, 2021. The IJ granted
12 two continuances in April, one for Tupikin, who was detained and had ongoing
13 quarantine measures during the pandemic, to find an attorney, and another for
14 preparation with his attorney. At a scheduling hearing in May, counsel initially
15 requested a June 28 merits hearing, but agreed to June 7 after the IJ requested an
16 earlier date. On the day of the merits hearing, counsel renewed a motion to
17 continue, stating that the jail where Tupikin was housed had a breakdown in its
18 remote visitation system from May 25 to June 2. The IJ denied the motion, but
4 1 allowed counsel an hour to meet again with Tupikin via video conference. After
2 that hour, the IJ asked counsel if he needed more time with Tupikin. Counsel
3 responded: “No, Your Honor. I think we can proceed. Thank you for your
4 patience.”
5 Given that the request for a continuance was not made until the day of the
6 merits hearing, counsel declined more time for discussion with Tupikin, and no
7 argument was raised as to what additional time would accomplish, the IJ’s
8 decision to deny a third continuance is “located within the range of permissible
9 decisions.” Garcia, 64 F.4th at 69 (quotation marks omitted); see also 8 C.F.R.
10 § 1003.29 (allowing continuance for “good cause”); cf. Sanusi, 445 F.3d at 200 (“The
11 IJ granted two continuances, and nothing in the record suggests that his decision
12 to deny a third request after months of delay was an abuse of discretion,
13 notwithstanding [petitioner’s] contention that further evidence would be
14 forthcoming.”).
15 Tupikin also argues that his former counsel rendered ineffective assistance
16 by failing to identify on appeal to the BIA how he was prejudiced by the denial of
17 a continuance. We generally would not consider this unexhausted claim. See
18 Jian Yun Zheng v.
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22-6043 Tupikin v. Garland BIA Conroy, IJ A215 928 942
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 12th day of July, two thousand twenty- 4 three. 5 6 PRESENT: 7 JON O. NEWMAN, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 NIKOLAY VLADIMIROVICH TUPIKIN, 14 Petitioner, 15 16 v. 22-6043 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: B. Alan Seidler, Esq., New York, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Cindy S. Ferrier, Assistant 3 Director; Sarai M. Aldana, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.
7 UPON DUE CONSIDERATION of this petition for review of a Board of
8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the petition for review is DENIED.
10 Petitioner Nikolay Vladimirovich Tupikin, a native and citizen of Russia,
11 seeks review of a December 29, 2021, decision of the BIA affirming a June 30, 2021,
12 decision of an Immigration Judge (“IJ”) insofar as it denied relief under the
13 Convention Against Torture (“CAT”).1 In re Nikolay Vladimirovich Tupikin, No. A
14 215 928 942 (B.I.A. Dec. 29, 2021), aff’g No. A 215 928 942 (Immig. Ct. N.Y. City June
15 30, 2021). We assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 Tupikin challenges the agency’s denial of a continuance and raises an
18 ineffective assistance of counsel claim.
19 The Government asserts that our jurisdiction to review the denial of a
1 Tupikin did not challenge the denial of asylum and withholding of removal before the BIA and does not address those forms of relief in his brief here. 2 1 continuance is limited to constitutional claims and questions of law. Generally,
2 where, as here, a petitioner has been ordered removed for an aggravated felony,
3 our jurisdiction is so limited. See 8 U.S.C. § 1252(a)(2)(C), (D). However, this
4 jurisdictional limitation on our review of removal orders based on criminal
5 grounds does not apply to review of CAT claims. See Nasrallah v. Barr, 140 S. Ct.
6 1683, 1689–92 (2020). This is because CAT orders “are not themselves final orders
7 of removal and do not affect the final validity of such orders.” Quintanilla-Mejia
8 v. Garland, 3 F.4th 569, 583 (2d Cir. 2021). Because Tupikin challenges the
9 agency’s denial of a continuance to present additional evidence in support of his
10 CAT claim, the jurisdictional bar likely does not apply. Id.; see also Ivanishvili v.
11 U.S. Dep't of Just., 433 F.3d 332, 338 n.2 (2d Cir. 2006) (“Our assumption of
12 jurisdiction to consider first the merits is not barred where the jurisdictional
13 constraints are imposed by statute, not the Constitution, and where the
14 jurisdictional issues are complex and the substance of the claim is, as here, plainly
15 without merit.”). Moreover, while 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial
16 review of certain discretionary agency decisions, “the decision by an IJ or the BIA
17 to grant or to deny a continuance in an immigration proceeding is not [such] a
18 decision.” Sanusi v. Gonzales, 445 F.3d 193, 198 (2d Cir. 2006). Accordingly, we
3 1 review the denial of the motion for a continuance for abuse of discretion. Id. at
2 199.
3 The agency did not abuse its discretion. An IJ “may grant a motion for
4 continuance for good cause shown.” 8 C.F.R. § 1003.29. “IJs are accorded wide
5 latitude in calendar management, and we will not micromanage their scheduling
6 decisions any more than when we review such decisions by district judges.
7 Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). “The agency abuses its
8 discretion when its decision rests on an error of law or a clearly erroneous factual
9 finding or cannot be located within the range of permissible decisions.” Garcia v.
10 Garland, 64 F.4th 62, 69 (2d Cir. 2023) (quotation marks and ellipses omitted).
11 DHS commenced removal proceedings on March 19, 2021. The IJ granted
12 two continuances in April, one for Tupikin, who was detained and had ongoing
13 quarantine measures during the pandemic, to find an attorney, and another for
14 preparation with his attorney. At a scheduling hearing in May, counsel initially
15 requested a June 28 merits hearing, but agreed to June 7 after the IJ requested an
16 earlier date. On the day of the merits hearing, counsel renewed a motion to
17 continue, stating that the jail where Tupikin was housed had a breakdown in its
18 remote visitation system from May 25 to June 2. The IJ denied the motion, but
4 1 allowed counsel an hour to meet again with Tupikin via video conference. After
2 that hour, the IJ asked counsel if he needed more time with Tupikin. Counsel
3 responded: “No, Your Honor. I think we can proceed. Thank you for your
4 patience.”
5 Given that the request for a continuance was not made until the day of the
6 merits hearing, counsel declined more time for discussion with Tupikin, and no
7 argument was raised as to what additional time would accomplish, the IJ’s
8 decision to deny a third continuance is “located within the range of permissible
9 decisions.” Garcia, 64 F.4th at 69 (quotation marks omitted); see also 8 C.F.R.
10 § 1003.29 (allowing continuance for “good cause”); cf. Sanusi, 445 F.3d at 200 (“The
11 IJ granted two continuances, and nothing in the record suggests that his decision
12 to deny a third request after months of delay was an abuse of discretion,
13 notwithstanding [petitioner’s] contention that further evidence would be
14 forthcoming.”).
15 Tupikin also argues that his former counsel rendered ineffective assistance
16 by failing to identify on appeal to the BIA how he was prejudiced by the denial of
17 a continuance. We generally would not consider this unexhausted claim. See
18 Jian Yun Zheng v. U.S. Dep't of Just., 409 F.3d 43, 46 (2d Cir. 2005) (explaining that
5 1 “the BIA should consider ineffectiveness claims in the first instance . . . to avoid
2 any premature interference with the agency’s processes” (quotation marks
3 omitted)); Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (“[T]he vehicle commonly
4 used to redress claims of ineffective assistance of counsel in deportation
5 proceedings has been an administrative motion to reopen proceedings.”).
6 However, the Supreme Court has recently held that there is no jurisdictional bar
7 to review of claims that were not raised before the BIA, and that reopening and
8 reconsideration are discretionary forms of review that noncitizens are not required
9 to pursue in order to exhaust administrative remedies as required under 8 U.S.C.
10 § 1252(d)(1). Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1117, 1120 (2023).
11 Accordingly, we deny the claim on the merits. To prevail on an ineffective
12 assistance claim, the noncitizen must demonstrate both that “competent counsel
13 would have acted otherwise, and . . . that he was prejudiced by his counsel’s
14 performance.” Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (quotation marks
15 omitted). While Tupikin asserts that he would have been able to obtain
16 corroboration from his parents and brother, evidence regarding his cooperation
17 with law enforcement in the United States, and Russian police records, he has not
18 stated that he gave counsel the information needed to obtain this alleged evidence,
6 1 and he still has not presented or tried to present any of this evidence.
2 Accordingly, he has not established the prejudice required to succeed on an
3 ineffective assistance or due process claim. See id.; Garcia-Villeda v. Mukasey, 531
4 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due process in immigration
5 cases must, in order to prevail, allege some cognizable prejudice fairly attributable
6 to the challenged process.” (quotation marks omitted)).
7 In addition, Tupikin cannot demonstrate prejudice because the agency
8 found that he failed to meet his burden of proof for CAT relief because he could
9 avoid torture by relocating within Russia. See 8 C.F.R. § 1208.16(c)(3) (listing
10 relocation in country of removal as factor in determining likelihood of torture).
11 Tupikin has not challenged this relocation finding here. See Yueqing Zhang v.
12 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (deeming a claim abandoned where
13 the petitioner did not address it in his brief). As that relocation finding is an
14 independent basis for the denial of the CAT claim, he has not demonstrated that
15 he could meet his burden of proof for CAT relief even with the additional
16 corroborating evidence. Tupikin does not otherwise challenge the merits of the
17 agency’s denial of his CAT claim.
18 For the foregoing reasons, the petition for review is DENIED. All pending
7 1 motions and applications are DENIED and stays are VACATED.
2 FOR THE COURT: 3 Catherine O’Hagan Wolfe, 4 Clerk of Court 5