Rahman v. Bondi

FOR PETITIONER: Khagendra Gharti-Chhetry, Chhetry & Associates, P.C., New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Sabatino F. Leo, Assistant Director; Colin J. Tucker, Senior Litigation Counsel; Office of Immigration Litigation, 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 Muhammad Khalilur Rahman, a native and citizen of Bangladesh, seeks review of a December 15, 2023, decision of the BIA denying his motion to reopen removal proceedings, which the BIA construed as also seeking reconsideration of its prior affirmance of an Immigration Judge's ("IJ") denial of asylum and related relief. See In re Rahman, No. A 206 185 994 (B.I.A. Dec. 15, 2023). We assume the parties' familiarity with the underlying facts and procedural history.

We review only the BIA's denial of reopening.¹Rahman does not challenge

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the grounds for the denial of reconsideration.²Accordingly, any challenge to that aspect of the BIA's decision is abandoned. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) ("We consider abandoned any claims not adequately presented in an appellant's brief, and an appellant's failure to make legal or factual arguments constitutes abandonment." (citation modified)).

"We review the denial of motions to reopen immigration proceedings for abuse of discretion, mindful that motions to reopen are disfavored." Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citation modified). A "motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is affirming the IJ's denial of asylum. See 8 U.S.C. § 1252(b)(1). Although the statutory deadline is not a jurisdictional bar, and it can be waived or forfeited, the government seeks to enforce the deadline here, and Rahman has not argued that the time limit should be equitably tolled or otherwise excused. See Riley v. Bondi,

145 S. Ct. 2190, 2201-04 (2025). Accordingly, any challenges to the IJ's merits decision and the BIA's affirmance of that decision are not before us. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (concluding that the Court was precluded from reaching underlying decision where petition was timely only as to denial of reopening).

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granted, and shall be supported by affidavits or other evidentiary material." 8 U.S.C. § 1229a(c)(7)(B). The motion "shall not be granted unless . . . 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); see also INS

v. Abudu, 485 U.S. 94, 104-05 (1988) (explaining that "the BIA may deny a motion to reopen . . . [if] the movant has not introduced previously unavailable, material evidence").

In his motion to reopen, Rahman pointed the BIA to evidence that he had provided to his prior counsel, but that counsel failed to present to the IJ. That evidence was presented to the BIA on direct appeal of the IJ's decision, but the BIA declined to consider it at that time because it had not been presented to the IJ. Rahman asserts that this evidence was "unavailable" at the time of the merits decisions because his former counsel failed to file the evidence despite having received it from Rahman.³He contends that this failure constituted ineffective

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assistance of counsel, and therefore, the BIA should have considered the evidence in connection with the motion to reopen.

An applicant seeking to reopen immigration proceedings based on a claim of ineffective assistance of counsel must comply substantially with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). See Jian Yun Zheng v. DOJ, 409 F.3d 43, 46-47 (2d Cir. 2005).

Under Lozada, an alien claiming ineffective assistance of counsel must submit: (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.

Debeatham v. Holder, 602 F.3d 481, 484-85 (2d Cir. 2010) (per curiam) (citation modified).

application before his hearing), but he has not argued that these deficiencies were independent bases for reopening. See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) ("[W]hen an argument made to this Court cannot be closely matched up with a specific argument made to the BIA, it has not been properly exhausted and we cannot hear it."); Debique, 58 F.4th at 684.

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An applicant "who has failed to comply substantially with the Lozada requirements . . . forfeits [his] ineffective assistance of counsel claim in this Court."

Jian Yun Zheng, 409 F.3d at 47. Rahman's motion to reopen did not mention the Lozada requirements, nor was it supported by documents reflecting compliance. We require only "substantial compliance" with Lozada, but Rahman did not comply at all. Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007). Nor is this a case where the ineffective assistance is "clear on the face of the record." Id. The only evidence that counsel was ineffective was Rahman's own testimony that he had provided the evidence to his counsel, but the IJ did not—and was not required to—credit that testimony after finding Rahman not credible on other grounds. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) ("[A] single instance of false testimony may . . . infect the balance of the alien's uncorroborated or unauthenticated evidence.").

Rahman does not dispute that he failed to comply with Lozada, but instead argues that Lozada is no longer good law in light of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron, U.S.A., Inc. v. Natural

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Resources Defense Council, Inc., 467 U.S. 837 (1984).⁴That argument is meritless. Our previous decisions upholding the agency's adoption of the Lozada requirements did not rely on application of Chevron deference. See, e.g., Debeatham,

602 F.3d at 484-85. And even if Chevron had been the basis for such decisions, the Supreme Court expressly stated in Loper Bright that its decision did "not call into question prior cases that relied on the Chevron framework," and that "[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite [the] change in interpretative methodology." 603 U.S. at 412. Rahman does not otherwise challenge the applicability of the Lozada requirements.

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

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