Ze Fei Fang v. Holder

372 F. App'x 133

• Court: Court of Appeals for the Second Circuit
• Decided: April 16, 2010
• Docket: 09-3489-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner, Ze Fei Fang, a native and citizen of the People’s Republic of China, seeks review of a July 20, 2009 order of the BIA denying his motion to reopen and reconsider. In re Ze Fei Fang, No. A 098 418 670 (B.I.A. July 20, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

As a preliminary matter, we are without jurisdiction to consider Fang’s challenge to the BIA’s October 2007 decision denying his application for asylum and withholding of removal because he failed to file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). Therefore, the only issue properly before us is whether the BIA abused its discretion in denying Fang’s motion to reopen based on the alleged ineffective assistance of his former attorney.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Alt v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Under Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988), an alien seeking to raise a claim for ineffective assistance of counsel must file a motion with the agency, including:

(1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel’s conduct and, if a complaint was not filed, an explanation for not doing so.

Twum v. I.N.S., 411 F.3d 54, 59 (2d Cir.2005); Esposito v. I.N.S., 987 F.2d 108, 110-11 (2d Cir.1993) (citing Lozada, 19 I. & N. Dec. at 639). Here, the BIA found that Fang failed to comply with Lozada’s “complaint requirements.” Specifically, the BIA stated that Fang failed to file a disciplinary complaint against his former attorney and failed to provide an explanation for such failure. Fang does not dispute this finding but instead argues that it should not be fatal to his claim because he exercised due diligence, informed his attorney of the issue, and gave him an opportunity to rectify the situation. However, we have held that an alien’s failure to comply with the Lozada requirements constitutes forfeiture of the ineffective assistance claim, and such a failure is thus a proper ground on which the BIA may deny a motion to reopen. See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.2005); cf. Piranej v. Mukasey, 516 F.3d 137, 142-45 (2d Cir.2008) (holding that evidence of a general retainer agreement may be sufficient to satisfy the first Lozada requirement). As to Fang’s contention that he exercised due diligence, the BIA noted that Fang failed to establish the date that he became aware of any alleged ineffective assistance of counsel, and, thus, that Fang is unable to demonstrate whether he exercised due diligence in pursuing his motion to reopen. See Jian Hua Wang v. B.I.A., 508 F.3d 710, 715 (2d Cir.2007) (rejecting petitioner’s claim of due diligence where he failed to “establish! ] in the written record ... what measures he took to reopen his case”).

In light of the BIA’s findings that Fang failed to comply with Lozada and to demonstrate the exercise of due diligence, the BIA’s decision denying his motion to reopen was not “arbitrary or capricious.” Ke Zhen Zhao, 265 F.3d at 93.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo tion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).