Opinion
18-1554 NAC
09-09-2020
SHARAFAT HOS KONOK, AKA SHARAFAT HOSSAIN KONOK, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: David J. Rodkin, Esq., New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 9th day of September, two thousand twenty. PRESENT: DEBRA ANN LIVINGSTON, Chief Judge , JON O. NEWMAN, REENA RAGGI, Circuit Judges. FOR PETITIONER: David J. Rodkin, Esq., New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, 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 Sharafat Hos Konok, a native and citizen of Bangladesh, seeks review of a May 2, 2018, decision of the BIA affirming a July 27, 2017, decision of an Immigration Judge ("IJ") denying Konok's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Sharafat Hos Konok, No. A 206 355 906 (B.I.A. May 2, 2018), aff'g No. A 206 355 906 (Immig. Ct. N.Y. City Jul. 27, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as modified and supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Konok challenges only the IJ's denial of a continuance and the BIA's denial of his claim of ineffective assistance of counsel. He has therefore waived review of the adverse credibility determination, which was the basis for the denial of relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005) (holding that petitioner abandoned a claim not addressed in his brief).
The agency did not abuse its discretion in denying a continuance or otherwise deprive Konok of a fair hearing because the IJ granted Konok multiple continuances to prepare his case. Further, the BIA did not err in denying Konok's ineffective assistance of counsel claim because Konok did not substantially comply with the procedural requirements for such a claim or demonstrate prejudice.
I. Denial of Continuance and Due Process
We review the denial of a continuance for an abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). The denial of a continuance is an abuse of discretion only if the IJ's "decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or . . . cannot be located within the range of permissible decisions." Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d Cir. 2006) (internal quotation marks omitted); see also Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) ("An abuse of discretion may be found . . . where the [agency's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the [agency] has acted in an arbitrary or capricious manner." (internal citations omitted)). An IJ "may grant a motion for continuance for good cause shown," 8 C.F.R. § 1003.29, and is "accorded wide latitude in calendar management," Morgan, 445 F.3d at 551.
Konok, through counsel, asked the IJ for a continuance less than a week prior to his December 2016 final hearing. He alleged that he was unable to prepare because his children were sick, but he offered no details regarding the severity or duration of their illness or why it prevented him from preparing during the three months since the last hearing. Konok's case had been pending for two years (since he entered the United States in November 2014), and the IJ had continued proceedings from October 2015 to March 2016, from March 2016 to August 2016, and then set a final hearing for December 2016. Konok, through counsel, confirmed at his September 2016 hearing that he would be ready to proceed at a December 2016 hearing, even after the IJ asked if counsel was sure, implying that the IJ was open to providing a longer continuance. Given the multiple continuances the IJ had already granted, the inadequate explanation for the failure to prepare, and the IJ's "wide latitude in calendar management," Morgan, 445 F.3d at 551, the IJ did not abuse her discretion in denying a continuance.
Konok's related due process arguments also fail. We review a due process claim de novo. Gjerjaj v. Holder, 691 F.3d 288, 292 (2d Cir. 2012). To prevail on a due process claim, a petitioner must show that he was deprived of a "full and fair opportunity" to present his case—or "that the IJ or BIA otherwise deprived [him] of fundamental fairness"—and some resulting prejudice. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007); Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). Konok "points to nothing in the record suggesting that [he] was denied a full and fair opportunity to present [his] claims; nor has [he] established that the IJ or BIA otherwise deprived [him] of fundamental fairness." Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 155 (2d Cir. 2006). To the contrary, the IJ gave Konok lengthy continuances to prepare his case.
II. Ineffective Assistance of Counsel Claim
Generally, to prevail on an ineffective assistance claim, an alien must substantially comply with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46-47 (2d Cir. 2005). Lozada requires:
(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. INS, 411 F.3d 54, 59 (2d Cir. 2005). The BIA imposes these requirements as "a basis for determining whether the assistance provided by counsel was, in fact, ineffective," and "to deter meritless claims." Piranej v. Mukasey, 516 F.3d 137, 141-42 (2d Cir. 2008) (citation and quotation marks omitted). We do not require "slavish adherence" to the procedural requirements, and if counsel's ineffectiveness is "clear on the face of the record," an alien may be excused from strict compliance with the Lozada requirements. Yi Long Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007). But where an alien fails at least to substantially comply with those requirements, he generally forfeits any ineffective assistance claim. See Jian Yun Zheng, 409 F.3d at 46-47. Further, to demonstrate ineffective assistance, a movant must show "that competent counsel would have acted otherwise, and . . . that he was prejudiced by his counsel's performance." Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (internal quotation marks omitted).
In his brief before the BIA, Konok argued that his counsel was obviously deficient in failing to prepare him for his hearing, and that strict compliance with Lozada is not required if there is "substantial compliance." However, as the BIA found, Konok did not comply with any of the requirements. And the basis for the claim is not clear from the record as there is no information about what efforts counsel made to prepare Konok or whether any lack of preparation was attributable to Konok himself.
Moreover, Konok has not shown that the BIA erred in finding that he failed to establish prejudice. He now appears to claim that he was prejudiced by his counsel's failure to object to the admission of documents from his Canadian asylum proceeding. Konok never raised this specific argument of prejudice with the BIA, and we may not review such unexhausted claims. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-22 (2d Cir. 2007) (requiring petitioner to exhaust all issues before the BIA). Further, he has not shown that his counsel's concession that the documents were admissible was wrong as required to establish the requisite prejudice for an ineffective assistance claim. See 8 U.S.C. § 1158(b)(B)(ii) (stating that "a trier of fact may base a credibility determination on . . . the consistency between the applicant's . . . written and oral statements (whenever made and whether or not under oath and considering the circumstances under which the statements were made)"); Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (explaining that in removal proceedings, evidence is admissible as long as it is probative and fundamentally fair and that fairness is "closely related to . . . reliability and trustworthiness").
Accordingly, given Konok's failure both to substantially comply with the Lozada requirements (which constitutes forfeiture of the ineffective assistance claim) and to exhaust his prejudice argument, the BIA properly denied his claim. See Jian Yun Zheng, 409 F.3d at 46-47; Lin Zhong, 480 F.3d at 119-22.
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