Opinion
No. 07-5303-ag NAC.
January 27, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Theodore Vialet, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Janice K. Redfern, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. REENA RAGGI, HON. PETER W. HALL, Circuit Judges.
Mamadou Sow, a native and citizen of Guinea, seeks review of an October 31, 2007 order of the BIA denying his motion to reopen his removal proceedings. In re Mamadou Sow, No. A95 856 013 (B.I.A. Oct. 31, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). "An abuse of discretion may be found . . . where the [BIA'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 Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
The Immigration and Nationality Act ("INA") and its implementing regulations provide that an individual may file only one motion to reopen, and must do so within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). It is undisputed that Sow's motion to reopen was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i). However, the time limitation does not apply to a motion to reopen to apply or reapply for asylum based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The time limitation may also be equitably tolled for a claim of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). In his motion to reopen, Sow argued that: (1) he had new evidence which was unavailable at the time of his merits hearing; (2) the situation in Guinea had worsened since his merits hearing; and (3) he received ineffective assistance from prior counsel. The BIA found that his motion was untimely and that the documentation Sow submitted was not previously unavailable and, in any event, did not reflect current country conditions in Guinea. In his brief to this Court, Sow does not challenge those findings, waiving any such argument. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). Rather, Sow argues that his failure to present appropriate documentary evidence to the IJ was a result of the ineffective assistance of his former counsel.
To prevail on an ineffective assistance of counsel claim, an individual must comply with the procedures laid out by the BIA in Matter of Lozada, 19 I. N. Dec. 637 (BIA 1988). See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). While "slavish adherence" is not required, see Yi Long Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007), Sow's failure to comply substantially with those requirements constituted a forfeiture of his ineffective assistance claim, and was a proper ground for the BIA's denial of his motion to reopen, see Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir. 2005). Sow complied with Lozada's third requirement by supporting his motion to reopen with a copy of the complaint he filed with the New York First Judicial Department's Disciplinary Committee ("Disciplinary Committee") against his allegedly ineffective former attorney. Sow argues that his compliance with the third Lozada requirement resulted in compliance with the second because, "as a matter of policy," the Disciplinary Committee notifies attorneys of complaints filed against them. However, he failed to offer any proof that such a policy exists. In any event, Lozada requires that the complainant, rather than a third party, notify former counsel. And even if Sow had complied with two of the three Lozada requirements, the agency properly found that he failed to submit an affidavit detailing the nature and scope of his agreement with his former attorney. The agency did not abuse its discretion by finding that Sow failed to comply with Lozada and, therefore, forfeited his ineffective assistance of counsel claim. See Jian Yun Zheng, 409 F.3d at 46.
Under Matter of Lozada, a motion based on a claim of ineffective assistance of counsel must be supported by: (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. 19 I. N. Dec. at 639.
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 motion 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(b).