Poku v. Holder , 559 F. App'x 91 ( 2014 )

10-3428
Poku v. Holder
BIA
Straus, IJ
A074 916 914
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 24th day of March, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 NANA OWUSU POKU,
14 Petitioner,
15
16 v. 10-3428
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, ET AL.,
20 Respondents.
21 _____________________________________
22
23 FOR PETITIONER: Nana Owusu Poku, pro se,
24 Wethersfield, Conn.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director, Yanal Yousef,
29 Trial Attorney; Office of
30 Immigration Litigation, U.S.
31 Department of Justice, Washington
32 D.C.
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 Nana Owusu Poku, a native and citizen of
6 Ghana, seeks review of the July 26, 2010, decision of the
7 BIA, affirming the July 21, 2009, decision of Immigration
8 Judge (“IJ”) Michael Straus, denying his motion to reopen
9 removal proceedings. In re Nana Owusu Poku, No. A074 916
10 914 (B.I.A. Jul. 26, 2010), aff’g No. A074 916 914 (Immig.
11 Ct. Hartford, Jul. 21, 2009). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 We review the agency’s denial of a motion to reopen for
15 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
16 Cir. 2005) (per curiam). “An abuse of discretion may be
17 found . . . where the [agency’s] decision provides no
18 rational explanation, inexplicably departs from established
19 policies, is devoid of any reasoning, or contains only
20 summary or conclusory statements; that is to say, where the
21 [agency] has acted in an arbitrary or capricious manner.”
22 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d
23 Cir. 2001) (internal citations omitted).
2
1 We find no abuse of discretion in this case. An IJ
2 has “broad discretion with respect to calendaring matters.”
3 Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.
4 2006)(internal quotations omitted). We review “an IJ’s
5 decision to establish and enforce filing deadlines for the
6 submission of documents” for abuse of discretion. Dedji v.
7 Mukasey, 525 F.3d 187, 191 (2d Cir. 2008); see also 8 C.F.R.
8 § 1003.31(a) (“All documents and applications that are to be
9 considered in a proceeding before an Immigration Judge must
10 be filed with the Immigration Court having administrative
11 control over the Record of Proceedings.”); 8 C.F.R. §
12 1003.31(c) (“The Immigration Judge may set and extend time
13 limits for the filing of applications. . . . If an
14 application . . . is not filed within the time set by the
15 Immigration Judge, the opportunity to file that application
16 or document shall be deemed waived.”).
17 The IJ properly exercised his discretion to deny Poku’s
18 motion to reopen because Poku’s failure to file his
19 application for cancellation of removal by the deadline set
20 by the IJ constituted a waiver of his opportunity to file
21 such an application. See 8 C.F.R. § 1003.31(c). The IJ
22 warned Poku, both at a hearing and in writing, that his
3
1 cancellation of removal application must be filed on or
2 before June 26, 2009 or his application would be deemed
3 abandoned and an order of removal would be issued. The
4 record shows that Poku was provided approximately six months
5 to file his application, the IJ set a clear deadline for the
6 filing of the application, and the cancellation of removal
7 application was not filed by the deadline. Therefore, it
8 cannot be said that the denial of Poku’s motion to reopen
9 was an abuse of discretion.
10 Furthermore, while Poku now raises a claim that his
11 counsel was ineffective for failing to timely file his
12 cancellation of removal application, this claim is
13 unexhausted as it was not raised before the BIA. See 8
14 U.S.C. § 1252(d)(1); see also Arango-Aradondo v. INS, 13
15 F.3d 610, 614 (2d Cir. 1994) (declining to address
16 ineffective assistance of counsel claim that was not
17 exhausted before the agency).
18 For the foregoing reasons, the petition for review is
19 DENIED and the stay of removal that the Court previously
20 granted in this petition is VACATED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
4