Sinistovic v. Holder

10-3618-ag
Sinistovic v. Holder

BIA
Nelson, IJ
A075 559 701

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.

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 11th day of July, two thousand eleven.

PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_________________________________________

MARK SINISTOVIC,
Petitioner,

v. 10-3618-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________

FOR PETITIONER: Joshua E. Bardavid, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;
Leslie McKay, Assistant Director;
Allison Frayer, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
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 Mark Sinistovic, a native of Yugoslavia and a
citizen of Serbia-Montenegro, seeks review of an August 27,
2010, decision of the BIA affirming the June 2, 2010, decision
of Immigration Judge (“IJ”) Barbara A. Nelson denying his
motion to rescind and reopen. In re Mark Sinistovic, No. A075
559 701 (B.I.A. Aug. 27, 2010), aff’g No. A075 559 701 (Immig.
Ct. N.Y. City June 2, 2010). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.

As an initial matter, motions to reopen removal
proceedings in which an alien was ordered removed in absentia
are governed by different rules depending on whether the
movant seeks to rescind the in absentia removal order or
present new evidence of his eligibility for relief. See Song
Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-,
22 I. & N. Dec. 349, 353-55 (B.I.A. 1998) (en banc).
Accordingly, when, as here, an alien files a motion that seeks
both rescission of an in absentia removal order, as well as
reopening of removal proceedings based on new evidence, we
treat the motion as comprising distinct motions to rescind and
to reopen. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d
Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152
n.1 (2d Cir. 2006).

Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
the denial of a motion to rescind an in absentia removal order
under the same abuse of discretion standard applicable to
motions to reopen. See Alrefae, 471 F.3d at 357; see also
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
We review de novo questions of law and the application of law
to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d
99, 110-11 (2d Cir. 2008).

2
A. Motion to Rescind

Sinistovic moved to rescind his in absentia removal
order, asserting that his failure to appear was due to
exceptional circumstances. An order of removal entered in
absentia may be rescinded on this basis upon a motion filed
within 180 days after the date of the order of removal. See
8 U.S.C. § 1229a(b)(5)(C)(i); see also 8 C.F.R.
§ 1003.23(b)(4)(ii). It is undisputed that Sinistovic’s 2010
motion to rescind was untimely filed because the IJ’s in
absentia removal order was issued in 1998. See 8 U.S.C.
§ 1229a(b)(5)(C)(i).

Here, Sinistovic argues that the agency erred because it
did not equitably toll the time period for filing his motion.
As the basis for his argument, he asserts that his prior
counsel was ineffective for advising him that he was not
required to attend his hearing before the IJ. To warrant
equitable tolling of the time period for filing a motion, even
assuming that prior counsel was ineffective, an alien is
required to demonstrate “due diligence” in pursuing his claim
during “both the period of time before the ineffective
assistance of counsel was or should have been discovered and
the period from that point until the motion to reopen is
filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008);
see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
Because Sinistovic did not indicate that he took any actions
to pursue his ineffective assistance of counsel claim against
his former attorney from 1999, when he learned of the IJ’s in
absentia removal order, until 2010, when he retained the
counsel who filed his motion to rescind, the agency did not
err in finding that Sinistovic failed to demonstrate that he
exercised due diligence in pursuing his ineffective assistance
of counsel claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715
(2d Cir. 2007) (providing that the “petitioner bears the
burden of proving that he has exercised due diligence in the
period between discovering the ineffectiveness of his
representation and filing the motion”); see also Rashid, 533
F.3d at 131.

Furthermore, the BIA was not required to credit
Sinistovic’s assertion, raised for the first time on appeal,
that after learning he had been ordered removed in absentia
because of the ineffective assistance of his former counsel,

3
he believed, based on information provided in 1999 and 2003 by
the same counsel, that the IJ’s removal order was no longer in
effect. See Jian Hua Wang, 508 F.3d at 715 (recognizing that
the analysis of whether a movant has exercised due diligence
involves an evaluation of the “reasonableness under the
circumstances – namely, whether and when the ineffective
assistance was, or should have been, discovered by a
reasonable person in the situation”) (internal quotation marks
and citations omitted). Moreover, the BIA reasonably found
Sinistovic’s argument unavailing because his assertion that he
did not know that the IJ’s removal order remained in effect
after 1999 was contradicted by the fact that he filed a motion
to rescind and reopen in 2003. See 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 [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.”)
(citations omitted). Accordingly, as the BIA found, even if
Sinistovic believed in 2003, based on the incorrect advice of
counsel, that the IJ’s removal order no longer stood, he
failed to demonstrate that he acted diligently in pursuing his
ineffective assistance of counsel claim from 1999 until the
filing of his first motion in 2003. See Jian Hua Wang, 508
F.3d at 715. Thus, the agency did not err in declining to
toll the time period for filing Sinistovic’s motion to
rescind. See id.

B. Motion to Reopen

Sinistovic also argues that the agency erred in declining
to reopen his proceedings to permit him to adjust status
because he complied with the requirements of Matter of
Velarde-Pacheco, 23 I. & N. Dec. 253 (B.I.A. 2002). In Matter
of Velarde-Pacheco, the BIA held that a motion to reopen could
be granted in the exercise of discretion to allow an alien the
opportunity to apply for adjustment of status, if, among other
requirements, the motion to reopen, however, was timely.
Sinistovic’s 2010 motion to reopen was not timely filed
because it was filed more than ten years after the IJ’s in
absentia removal order became final. See 8 U.S.C. §
1229a(c)(7)(C)(i) (providing that a “motion to reopen shall be
filed within 90 days of the date of entry of a final

4
administrative order of removal”); see also 8 C.F.R. §
1003.23(b)(1). Thus, the BIA did not abuse its discretion
under Matter of Velarde-Pacheco in declining to reopen his
proceedings as a matter of discretion. See Matter of Velarde-
Pacheco, 23 I. & N. Dec. at 256.

Finally, in declining to reopen sua sponte Sinistovic’s
proceedings to permit him to apply for adjustment of status,
the BIA found that he failed to comply substantially with the
procedural requirements for raising an ineffective assistance
of counsel claim set forth in Matter of Lozada, 19 I. & N.
Dec. 637 (B.I.A. 1988). We generally lack jurisdiction to
consider the BIA’s “entirely discretionary” decision regarding
whether to reopen removal proceedings sua sponte. Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009); Ali v. Gonzales, 448
F.3d 515, 518 (2d Cir. 2006). However, we retain jurisdiction
to consider an argument that the agency declined to exercise
its sua sponte authority based on a misperception of the law.
See Mahmood, 570 F.3d at 469; see also Aslam v. Mukasey, 537
F.3d 110, 115 (2d Cir. 2008).

Here, Sinistovic argues that the BIA erred as a matter of
law in finding that he failed to comply substantially with the
Lozada requirements. To prevail on an ineffective assistance
claim, the alien must substantially comply with certain
procedures laid out by the BIA in Matter of Lozada. See Jian
Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46-47 (2d
Cir. 2005). Specifically, the alien 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. INS, 411 F.3d 54, 59 (2d Cir. 2005) (quoting Esposito
v. INS, 987 F.2d 108, 110-11 (2d Cir. 1993) (per curiam)).

In this case, the BIA reasonably found that Sinistovic
did not substantially comply with the Lozada requirements
because he failed to submit any of the evidence required by

5
Lozada. See id. Contrary to Sinistovic’s contention in his
brief to this Court, he did not explain to the agency that he
was unable to submit an affidavit in support of his motion.
Moreover, even though we have recognized that a movant may
substantially comply with the Lozada requirements when it is
“clear on the face of the record . . . that counsel was
subsequently disbarred for malpractice as an immigration
attorney,” Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d
Cir. 2007), it was not clear from the record in Sinistovic’s
proceedings that his former attorney had been disbarred
because Sinistovic provided only unsworn statements to this
effect without any information as to when or why the
disbarment occurred. See id.; see also Kulhawik v. Holder,
571 F.3d 296, 298 (2d Cir. 2009) (“An attorney’s unsworn
statements in a brief are not evidence.”). Thus, the BIA did
not misperceive the law in finding that Sinistovic failed to
comply substantially with the Matter of Lozada requirements.
See Jian Yun Zheng, 409 F.3d at 46.

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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

6