10-252-ag
Liu v. Holder
BIA
A093 397 317
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 15th day of March, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
______________________________________
SHAN XI LIU,
Petitioner,
10-252-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Tina Howe, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer Paisner Williams,
Senior Litigation Counsel; Ali
Manuchehry, Trial Attorney, United
States Department of Justice, Office
of Immigration Litigation, Civil
Division, Washington, D.C.
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, Shan Xi Liu, a native and citizen of the
People’s Republic of China, seeks review of a December 28,
2009 decision of the BIA denying his motion to reopen his
removal proceedings. In re Shan Xi Liu, No. A093 397 317
(B.I.A. Dec. 28, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
We review for abuse of discretion the BIA’s denial of a
motion to reopen and reconsider. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006)(per curiam). An individual moving
to reopen his removal proceedings based upon a claim of
ineffective assistance of counsel must: (1) support the
motion with an affidavit attesting to the relevant facts;
(2) inform his former counsel of the allegations and allow
counsel the opportunity to respond; and (3) disclose whether
a complaint has been filed with the appropriate disciplinary
authorities regarding such representation, and if one has
not been filed, explain why. Matter of Lozada, 19 I. & N.
Dec. 637, 639 (B.I.A. 1988). “We have not required a
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slavish adherence” to the Lozada requirements, “holding only
that substantial compliance is necessary.” Yi Long Yang v.
Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007). Nonetheless,
we have held that “an alien who has failed to comply
substantially with the Lozada requirements in her motion to
reopen before the BIA forfeits her ineffective assistance of
counsel claim in this Court.” Jian Yun Zheng v. U.S. Dep’t
of Justice, 409 F.3d 43, 47 (2d Cir. 2005).
On appeal, Liu asserts that the BIA failed to consider
the evidence he submitted of his compliance with Lozada.
This evidence consists of (1) an “Evidence List” indicating
the inclusion of a “Copy of Complaint Letter” from Liu
against prior counsel to a disciplinary committee and to
prior counsel; (2) a cover letter, dated May 10, 2009, which
is addressed to the disciplinary committee of the Appellate
Division of the Supreme Court of the State of New York,
First Judicial Department, includes a “cc:” notation listing
prior counsel’s name and address, and references an enclosed
“complaint letter” regarding prior counsel; and (3) a three-
page affidavit from Liu, sworn on May 14, 2009, detailing
his allegations of ineffective assistance. The first page of
the copy of Liu’s affidavit appearing in the record bears
two twenty-digit numbers. Liu provided no explanation of
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the significance of these numbers below, but on appeal,
asserts that they reflect United States Postal Service
tracking numbers, which in turn provide proof that these
materials were mailed to prior counsel and to the
disciplinary committee on May 18, 2009, and respectively
received by these parties on May 19 and May 26, 2009. Pet’r
Br. at 14.
In its decision denying the motion to reopen, the BIA
stated that Liu had not offered a copy of his alleged
“complaint letter” for the agency’s consideration. It is
unclear to us whether the agency understood and considered
Liu’s assertion, which he has made more clearly in his
appellate brief, that the “Complaint Letter” referred to in
his exhibit list and cover letter is in fact the three-page
affidavit he submitted to the BIA along with his motion. We
are therefore also uncertain whether the agency, in
concluding that Liu failed “to provide evidence to establish
if and when a complaint letter was properly filed with the
parties,” implicitly determined that a cover letter listing
the addresses of the disciplinary committee and prior
counsel was insufficient proof that the complaint was sent
to these parties.
Despite these ambiguities in the BIA’s decision, we
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need not remand for clarification in the circumstances of
this case, as “we can state with confidence that the same
decision would be made on remand.” Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006). This is
because the record makes clear that Liu failed to comply
with Lozada’s notice requirement insofar as Liu did not
inform prior counsel of his allegations and allow counsel
the opportunity to respond “before allegations of
ineffective assistance of former counsel are presented to
the Board.” Lozada, 19 I & N Dec. at 639 (emphasis added);
see also id. (“Any subsequent response from counsel, or
report of counsel’s failure or refusal to respond, should be
submitted with the motion.”). Liu’s motion to reopen was
filed with the BIA on May 20, 2009, only six days after the
date that his affidavit was sworn. According to Liu’s
explanation of the tracking numbers affixed to the
affidavit, this affidavit was not received by prior counsel
until one day before the motion to reopen was filed with the
BIA. Therefore, it is apparent from the record that Liu has
failed to comply substantially with Lozada. See, e.g.,
Asaba v. Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004) (holding
that a period of three days between the mailing of grievance
to counsel and the filing of the motion to reopen “does not
5
provide [counsel] an ‘adequate opportunity to respond’ to
the allegations”).
We have considered Liu’s remaining arguments and find
them to be without merit. For the foregoing reasons, the
petition for review is DENIED. As we have completed our
review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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