Assad v. Sessions ( 2018 )

17-521
Assad v. Sessions
BIA
Poczter, IJ
A087 146 447
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 REPRESsENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 28th day of August, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
MUHAMMAD ASSAD, AKA ASAD BUTT,
Petitioner,
v. 17-521
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Naresh M. Gehi, Forest Hills, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Russell J.E.
Verby, 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 Assad, a native and citizen of
Pakistan, seeks review of a January 27, 2017, decision of the
BIA affirming a December 23, 2015, decision of an Immigration
Judge (“IJ”) denying Assad’s motion to reopen his removal
proceedings. In re Muhammad Assad, No. A 087 146 447 (B.I.A.
Jan. 27, 2017), aff’g No. A087 146 447 (Immig. Ct. N.Y. City
Dec. 23, 2015). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Assad’s petition is timely filed only as to the denial
of reopening, so our review is limited to that decision.
See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-
90 (2d Cir. 2001). We have reviewed the IJ’s decision as
supplemented by the BIA. Gertsenshteyn v. U.S. Dep’t of
Justice, 544 F.3d 137, 142 (2d Cir. 2008). We review the
agency’s denial of a motion to reopen for abuse of
discretion, “mindful that motions to reopen ‘are
disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2
2006, quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992).
To obtain reopening based on new evidence, a movant must
present previously unavailable evidence that establishes
his prima facie eligibility for the relief sought. See 8
C.F.R. § 1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104
(1988). For reopening based on ineffective assistance of
counsel, a movant must establish that counsel’s performance
resulted in actual prejudice. See Esposito v. INS, 987
F.2d 108, 111 (2d Cir. 1993). In sum, to obtain reopening
based on ineffective assistance or new evidence, a movant
has to show that reopening is likely to change the result
of the proceedings. Id.; Jian Hui Shao v. Mukasey, 546
F.3d 138, 168 (2d Cir. 2008) (reopening “requires the alien
to carry the ‘heavy burden’ of demonstrating that the
proffered new evidence would likely alter the result in her
case”). Assad did not meet his burden of showing prejudice
because he did not show that the outcome would have been
different had proceedings been reopened.
Assad essentially argues that had his counsel presented
Assad with the opportunity to testify, the agency would not
have found him removable for a misrepresentation because
3
Assad’s testimony would have proved that his and his wife’s
affidavits were coerced. But the agency found that Assad
made a material representation on his adjustment
application even if the affidavits were not considered.
Accordingly, he did not show that the failure to offer his
testimony was prejudicial. See Esposito, 987 F.2d at 111.
A letter from Assad’s landlord contradicted Assad’s
allegation that he had been living with his wife when he
filed his application for permanent residence, and the IJ
was not required to give greater weight to affidavits from
Assad’s friends, which all contained near-identical
language and repeated an incorrect spelling of Assad’s
address. Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d
517, 524 (2d Cir. 2007) (noting that “striking similarities
between affidavits are an indication that the statements
are ‘canned.’”); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
209, 215 (BIA 2010) (giving diminished weight to letters
from relatives because they were from interested witnesses
not subject to cross-examination), remanded on other
grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
2012).
4
Assad also requested reopening on the ground that his
counsel should have filed an asylum application on his
behalf. Assad did not meet his burden for reopening
because the country conditions evidence offered in support
of his application was not new or previously unavailable.
See 8 C.F.R. § 1003.2(c)(1); Abudu, 485 U.S. at 104.
Moreover, as the agency found, Assad did not allege, much
less prove, that he told any of his former attorneys that
he feared returning to Pakistan.
Finally, Assad argued for reopening to seek a
redetermination of the denial of the removal of the
conditions on his permanent resident status and to request
a waiver of the joint filing requirement. But the agency
reasonably concluded that Assad failed to demonstrate that
he was prima facie eligible for a “good faith” waiver
because the evidence showed that he misrepresented material
information (the address where he lived with his wife) and
thus failed to demonstrate that he had entered his marriage
in good faith. See 8 U.S.C. § 1186a(a)(4)(B); see also 8
C.F.R. § 1003.2(c)(1); Abudu, 485 U.S. at 104.
5
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
6