16-821
Ugbajah v. Sessions
BIA
A091 358 822
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 12th day of April, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 IYK O. UGBAJAH, AKA IYK SIX,
14 AKA FRED IKECHI UGBAJA,
15 Petitioner,
16
17 v. 16-821
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Paul B. Grotas, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Melissa
28 Neiman-Kelting, Senior Litigation
29 Counsel; Melissa K. Lott, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
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 is
4 DENIED.
5 Petitioner Iyk O. Ugbajah, a native and citizen of Nigeria,
6 seeks review of a February 17, 2016 decision of the BIA denying
7 Ugbajah’s motion to reopen. In re Iyk O. Ugbajah, No. A091 358
8 822 (B.I.A. Feb. 17, 2016). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this case.
10 We review the BIA’s denial of a motion to reopen for abuse
11 of discretion, “mindful that motions to reopen ‘are
12 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
13 (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)). An alien
14 may file one motion to reopen no later than 90 days after the
15 final administrative decision is rendered. 8 U.S.C.
16 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Ugbajah’s
17 motion was untimely.
18 The time limitation may be excused for a claim of
19 ineffective assistance of counsel. Rashid v. Mukasey, 533 F.3d
20 127, 130 (2d Cir. 2008). To prevail on an ineffective
21 assistance claim, however, an alien must substantially comply
22 with Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). See
23 Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d
24 Cir. 2005). Lozada requires:
2
1 (1) an affidavit setting forth in detail the agreement
2 with former counsel concerning what action would be
3 taken and what counsel did or did not represent in this
4 regard; (2) proof that the alien notified former
5 counsel of the allegations of ineffective assistance
6 and allowed counsel an opportunity to respond; and (3)
7 if a violation of ethical or legal responsibilities
8 is claimed, a statement as to whether the alien filed
9 a complaint with any disciplinary authority regarding
10 counsel’s conduct and, if a complaint was not filed,
11 an explanation for not doing so.
12
13 Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). Failure to comply
14 substantially with the three Lozada requirements may forfeit
15 an ineffective assistance claim in this Court. See Jian Yun
16 Zheng, 409 F.3d at 46-47.
17 The BIA had the discretion to deny Ugbajah’s motion.
18 First, Ugbajah failed to describe his agreement with counsel
19 (the first Lozada requirement), which, as the BIA noted, was
20 particularly relevant because Ugbajah’s removal hearing was
21 twice continued for his prior attorneys to investigate the
22 possibility of applying for asylum, withholding of removal, and
23 CAT relief. Ugbajah’s affidavit in support of his motion to
24 reopen said that he wanted to apply for asylum, but not that
25 he asked counsel to do so. On this record, the BIA was within
26 its discretion to find that, absent further detail regarding
27 any agreement between Ugbajah and counsel to file an asylum
28 application, Ugbajah failed to justify excusing the time
29 limitation applicable to his motion to reopen.
3
1 Second, Ugbajah failed to submit evidence that he filed a
2 formal complaint against his attorney. Ugbajah argues that
3 this Court has taken a flexible approach to this Lozada
4 requirement, and in support cites Esposito v. INS, where this
5 Court reached the ineffective assistance claim despite the
6 petitioner’s failure to file a complaint with a disciplinary
7 authority. 987 F.2d 108, 111 (2d Cir. 1993). But there, the
8 petitioner provided “a reasonable explanation in his affidavit
9 (a belief that [his former attorney] had already been suspended
10 from the practice of law) for not doing so.” Id. Ugbajah’s
11 explanation--that he was unable to file a complaint against
12 counsel from the detention facility--was not reasonable since
13 he was represented by current counsel well before he moved to
14 reopen. Accordingly, since he has failed to meet two of the
15 three Lozada requirements, Ugbajah has forfeited his
16 ineffective assistance claim. See Jian Yun Zheng, 409 F.3d at
17 48.
18 Ugbajah argues that because the BIA declined to reach the
19 merits of his ineffective assistance claim, and failed to
20 consider his professed fear of returning to Nigeria and his
21 background documents, it violated his due process rights. But
22 in Jian Yun Zheng, we held that the BIA may reject an ineffective
23 assistance claim for failure to comply with Lozada. Jian Yun
24 Zheng, 409 F.3d at 48. As in that case, the BIA’s decision “does
4
1 not suggest that the appellate brief was not considered, but
2 only that the BIA found [the petitioner’s] motion insufficient
3 insofar as it did not comply with Lozada’s requirements.” Id.
4 Moreover, it is unlikely that prior counsel’s “strategic
5 decision” not to pursue a “questionable asylum claim” made
6 Ugbajah’s removal proceedings unfair. Changxu Jiang v.
7 Mukasey, 522 F.3d 266, 270 (2d Cir. 2008).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
5