Xiaodan Huang v. Holder

11-3715 Huang v. Holder BIA A099 183 869 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 19th day of December, two thousand thirteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 SUSAN L. CARNEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAODAN HUANG, 14 Petitioner, 15 16 v. 11-3715 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Chunyu Jean Wang, Flushing, NY. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; Terri J. Scadron, 27 Assistant Director; Richard 28 Zanfardino, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 32 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Xiaodan Huang, a native and citizen of 6 China, seeks review of an August 24, 2011 decision of the 7 BIA denying her motion to reopen her removal proceedings. 8 In re Xiaodan Huang, No. A099 183 869 (B.I.A. Aug. 24, 9 2011). We assume the parties’ familiarity with the 10 underlying facts and procedural history in this case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006) (per curiam). An alien seeking to reopen 14 proceedings is required to file a motion to reopen no later 15 than 90 days after the date on which the final 16 administrative decision was rendered, and is permitted to 17 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), 18 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that 19 Huang’s second motion to reopen, filed nearly two years 20 after the immigration judge’s (“IJ”) order of removal became 21 final, was untimely and number-barred. Id. 22 Huang contends that the time limitation should be 23 equitably tolled because of her prior counsel’s ineffective 2 1 assistance. See Rashid v. Mukasey, 533 F.3d 127, 130 (2d 2 Cir. 2008). To prevail on a claim of ineffective assistance 3 of counsel, a movant must show that competent counsel would 4 have acted otherwise and that she was prejudiced by her 5 counsel’s performance. See Rabiu v. INS, 41 F.3d 879, 882 6 (2d Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 7 1993) (per curiam). As discussed below, the BIA did not 8 abuse its discretion in finding that Huang failed to show 9 she was prejudiced by her counsel’s performance. 10 Huang alleges that she had three representatives, each 11 of whom provided ineffective assistance: (1) “Ms. Wang,” a 12 non-attorney immigration consultant who--allegedly 13 unbeknownst to Huang--filed an application for adjustment of 14 status for Huang based on a fraudulent marriage certificate; 15 (2) Gary Yerman, an attorney who represented Huang in 16 connection with her application for asylum, withholding or 17 removal and CAT relief, and who failed to discover Wang’s 18 fraudulent filings, including the fake marriage certificate, 19 and failed to file an ineffective assistance claim against 20 Wang; and (3) Gonzalo “Jun” Policarpio, a non-attorney 21 immigration consultant, who, among other things, caused 22 Huang to file an untimely motion to reopen and subsequent 3 1 appeal, and neglected to file an ineffective assistance 2 claim against Wang and Yerman. In essence, Huang claims 3 that she was prejudiced by her former counsel’s errors 4 because her application for asylum, withholding of removal, 5 and CAT relief was denied on the basis of the fraudulent 6 marriage certificate. 7 We reject Huang’s claim. First, Huang suffered no 8 prejudice as a result of Wang’s fraudulent filing or 9 Yerman’s failure to discover the fraud. The IJ stated in 10 his 2009 written decision denying Huang’s first motion to 11 reopen that he had denied her applications for relief not 12 because she previously filed an application for adjustment 13 of status based on a fraudulent marriage certificate, but 14 based on his “determin[ation] that [she] had failed to 15 establish eligibility for such relief.” October 14, 2009 16 Order at 2, Petr. Add. 295. 17 Moreover, Huang did not meet her burden of supporting 18 her motion with relevant evidence. See INS v. Abudu, 485 19 U.S. 94, 110 (1988) (analogizing burden faced by alien 20 seeking to reopen removal proceedings to that of criminal 21 defendant moving for new trial). BIA procedures allowed 22 Huang to file a motion for preparation of her transcripts in 4 1 support of her motion to reopen, but she failed to do so. 2 See BIA Practice Manual 5.5 (“Transcript Requests”). 3 Huang’s failure to support the allegations in her second 4 motion to reopen with transcripts of either her hearings or 5 the IJ’s 2009 oral decision is fatal to her ability to show 6 that the denial rested in fact on–-or was even related to-- 7 the fraudulent marriage certificate or other prejudice 8 arising from her counsel’s alleged errors. See Rabiu, 41 9 F.3d at 882. 10 Huang argues–-using an isolated quotation from a 11 recording of the IJ’s oral decision that is not in the 12 record–-that Wang’s submission of the fraudulent marriage 13 certificate wrongfully served as the basis for the IJ’s 14 decision to deny her applications for relief. We are unable 15 to consider this argument, however, because our review is 16 limited to the record on appeal. See Zhou Yun Zhang v. INS, 17 386.F.3d 66, 73-74 (2d Cir. 2004), overruled on other 18 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3D 19 296 (2d Cir. 2007). She therefore cannot carry her burden 20 of demonstrating prejudice from Wang’s actions or Yerman’s 21 failure to discover Wang’s actions. See id. 22 Similarly, without transcripts of her hearings and the 23 IJ’s 2009 oral decision, Huang cannot show that she was 5 1 prejudiced by any of Policarpio’s advice or actions, 2 including his initial recommendation to forgo appeal and his 3 decision not to raise an ineffective assistance of counsel 4 claim against Yerman. See id. Accordingly, the BIA did not 5 abuse its discretion in finding that Huang failed to show 6 prejudice from her former counsel’s alleged errors and 7 denying her motion to reopen as untimely. See Rabiu, 41 8 F.3d at 882; Abudu, 485 U.S. at 110. 9 Huang also argues for the first time in this Court that 10 she was prejudiced by Yerman’s filing of a baseless 11 application for asylum rather than an application for 12 adjustment of status or cancellation of removal, for which 13 she was allegedly eligible. Before the BIA, Huang alleged 14 something different: that Wang’s filing of the fraudulent 15 marriage certificate resulted in the denial of the 16 meritorious asylum claim that Yerman filed for her. Because 17 Huang failed to present this new argument to the agency, we 18 decline to consider it now. See Lin Zhong v. U.S. Dep’t of 19 Justice, 480 F.3d 104, 119-20 (2d Cir. 2006). 20 Huang’s failure to support her motion with transcripts 21 also prevents her from demonstrating that the IJ’s denial of 22 her application for asylum, withholding of removal, and 23 relief under the Convention Against Torture, violated her 6 1 due process rights. See Abudu, 485 U.S. at 110. Huang 2 argues that in her motion she identified law previously 3 unconsidered by the IJ. But her counsel’s arguments, new or 4 not, do not of themselves constitute grounds for a motion to 5 reopen. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 6 (1984). And without transcripts of the IJ’s 2009 oral 7 decision, Huang’s assertions regarding what the IJ 8 considered are inadequately supported. Thus, even assuming 9 that the BIA erred in construing her due process allegations 10 as grounds for an untimely motion to reconsider, remanding 11 these proceedings would be futile. See Cao He Lin v. U.S. 12 Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005) (holding 13 that remand is not required “where there is no realistic 14 possibility that, absent the errors, the IJ or BIA would 15 have reached a different conclusion”). 16 Last, Huang’s argument that the BIA applied an 17 incorrect standard when it considered only whether she was 18 prejudiced by her former counsel’s errors is misplaced. The 19 BIA’s findings that Huang failed to pursue diligently her 20 claims for ineffective assistance, and that she failed to 21 demonstrate prejudice from her counsel’s alleged errors, 22 each provided an independent basis for denying her untimely 23 motion to reopen. Accordingly, the BIA had no obligation to 7 1 assess whether competent counsel would have acted otherwise. 2 See Rashid, 533 F.3d at 130-131; Rabiu, 41 F.3d at 882-83; 3 see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a 4 general rule courts and agencies are not required to make 5 findings on issues the decision of which is unnecessary to 6 the results they reach.”). 7 For the foregoing reasons, the petition for review is 8 DENIED. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 8