09-0248-ag
Riaz v. Holder
BIA
Defonzo, IJ
A097 524 083
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 2 nd day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges,
DENNY CHIN, *
District Judge.
_________________________________________
MOHAMMAD RIAZ,
Petitioner,
v. 09-0248-ag
ERIC H. HOLDER JR.,
U.S. ATTORNEY GENERAL, **
Respondent.
_________________________________________
*
The Honorable Denny Chin of the United States District
Court for the Southern District of New York, sitting by
designation.
**
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), United States Attorney General Eric H. Holder Jr.
is substituted for former Attorney General Michael B.
Mukasey as Respondent in this case.
FOR PETITIONER: M ICHAEL R ADIGAN, Attorney, Khagendra
Gharti-Chhetry, Chhetry &
Associates, P.C., New York, N.Y.
FOR RESPONDENT: J AMES A. H URLEY, Attorney, Tony West,
Assistant Attorney General, Thomas
B. Fatouros, Senior Litigation
Counsel, Office of Immigration
Litigation, Civil Division, 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 Mohammad Riaz, a native and citizen of
Pakistan, seeks review of the December 18, 2008 order of the
BIA affirming the November 7, 2006 decision of Immigration
Judge (“IJ”) Paul A. Defonzo denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Mohammad Riaz,
No. A097 524 083 (B.I.A. Dec. 18, 2008), aff’g No. A097 524
083 (Immig. Ct. N.Y. City Nov. 7, 2006). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s
decision, but its decision closely tracks the IJ’s
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reasoning, we may consider both the IJ’s and the BIA’s
opinions for the sake of completeness. Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir. 2008).
The BIA reasonably affirmed the IJ’s finding that Riaz
failed to prosecute his applications for asylum, withholding
of removal, and CAT relief. Under 8 C.F.R. § 1003.31(c), an
“Immigration Judge may set and extend time limits for the
filing of applications and related documents . . . . If an
application or document is not filed within the time set by
the Immigration Judge, the opportunity to file that
application or document shall be deemed waived.” We review
an IJ’s decision to establish and enforce deadlines for the
submission of documents for abuse of discretion. See Dedji
v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008).
On October 28, 2005, the IJ informed Riaz that he had
until January 6, 2006 to present an application for asylum
and withholding of removal. That deadline was later
extended to March 31, 2006. On March 31, 2006, Riaz
indicated that he did not prepare an application for asylum
and withholding, but that instead, he had decided to pursue
an application for alternative relief under the LIFE Act.
The IJ told Riaz that if he did not present an asylum and
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withholding application that day, it would be denied for
failure to prosecute. He gave Riaz time to consider the
matter with counsel. After conferring with counsel, Riaz
declined to file any application, and thus, the IJ denied it
for lack of prosecution. Then, on August 18, 2006, Riaz
reversed course, and sought to submit an application for
asylum and withholding. The IJ found that Riaz’s stated
excuses did not justify his failure to file by the deadline,
and reiterated that the denial stood.
As the BIA found, the IJ did not abuse his discretion
in denying Riaz’s application for failure to prosecute.
Although Riaz was fully aware of the ramifications of
failing to adhere to the IJ’s instructions–having been
warned that his application would be denied if it was not
filed by March 2006—Riaz opted not to file his application
within that mandated time period.
Riaz also asserts that the BIA erred by denying his
motion to remand. A motion to remand that relies, as here,
on newly available evidence is held to the substantive
requirements of a motion to reopen. Li Yong Cao v. U.S.
Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). Thus,
it “shall not be granted unless it appears to the Board that
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evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1). We review
the BIA’s denial of a motion to remand for abuse of
discretion. See Li Yong Cao, 421 F.3d at 157.
Riaz argues that, in denying his motion to remand, the
BIA erred by engaging in improper factfinding in determining
that the evidence he submitted concerning his brother-in-
law’s alleged kidnapping did not support his asylum claim.
This argument is unavailing. Indeed, to adjudicate a motion
to remand, the BIA must assess the materiality of the
evidence the movant submitted to determine whether he or she
“demonstrat[ed] a likelihood that the new evidence presented
would alter the result in the case [on remand].” Id. at
156. Here, after considering the evidence, the BIA
reasonably concluded that Riaz had failed to show that its
introduction would result in a different outcome.
Accordingly, the BIA’s denial of his motion was not an abuse
of discretion.
As a final matter, counsel of record before us appears
to have represented him in the administrative proceedings
below. Understandably, such counsel do not raise the issue
of their own possible ineffectiveness in the course of those
5
proceedings. As we understand the record, however, the IJ
warned counsel on October 28, 2005 that failure to bring an
application for asylum to the next hearing might result in
denial of the application for failure to prosecute. The
record suggests that such an application would have at least
been colorable. Despite having five months to prepare it,
counsel did not bring such a petition to the subsequent
hearing. The IJ, as noted earlier, nonetheless opted not to
deny the application outright, permitting counsel until the
end of the day to file such an application. Counsel
specifically declined this invitation to file, choosing
instead to pursue an application for temporary residency
under the LIFE Act.
But the LIFE Act application appears to have been
invalid on its face because the petitioner did not meet the
minimum residency requirement. This fact was placed on the
record by counsel for the government during the March 31,
2005 hearing. The petitioner’s counsel nonetheless made no
effort to have the IJ reconsider his denial of the asylum
application.
We are not in a position to determine here whether the
petitioner would succeed on a claim for ineffective
assistance of counsel given the extremely stringent
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procedural requirements of In re Lozada, 19 I. & N. Dec.
637, 639 (BIA 1988); see also In re Compean, 25 I. & N. Dec.
1 (A.G. 2009) (Lozada controls until such time, if any, as
the Department of Justice establishes a superseding
framework for review). But it appears to us, at minimum,
that counsel fell short of his responsibilities to his
client. We therefore instruct counsel specifically to call
our concerns to the petitioner’s personal attention so that
he is able to assess what further action he might pursue.
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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