Rvalov v. Garland ( 2022 )

20-43
Rvalov v. Garland
BIA
Christenen, IJ
A070 136 758
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 20th day of April, two thousand twenty-two.
5
6 PRESENT:
7 RICHARD J. SULLIVAN,
8 EUNICE C. LEE,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 ANDREI RVALOV,
14 Petitioner,
15
16 v. 20-43
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas E. Moseley, Esq., Newark,
24 NJ.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Shelley R. Goad, Assistant
1 Director; Kristen A. Giuffreda,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Andrei Rvalov, a native of the former U.S.S.R.
11 and citizen of Russia, seeks review of a December 13, 2019
12 decision of the BIA affirming a June 26, 2018 decision of an
13 Immigration Judge (“IJ”) denying his motion to reopen. In
14 re Andrei Rvalov, No. A 070 136 758 (B.I.A. Dec. 13, 2019),
15 aff’g No. A 070 136 758 (Immigr. Ct. N.Y. City June 26, 2018).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history.
18 We have reviewed the IJ’s decision as the final agency
19 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
20 (2d Cir. 2008). We review a denial of a motion to reopen for
21 abuse of discretion. See Debeatham v. Holder, 602 F.3d 481,
22 484 (2d Cir. 2010). “An abuse of discretion may be
23 found . . . where the [IJ’s] decision provides no rational
24 explanation, inexplicably departs from established policies,
2
1 is devoid of any reasoning, or contains only summary or
2 conclusory statements; that is to say, where [the IJ] has
3 acted in an arbitrary or capricious manner.” Ke Zhen Zhao
4 v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 2001)
5 (internal citations omitted). We find no abuse of discretion
6 here.
7 Rvalov moved to reopen his removal proceedings, alleging
8 ineffective assistance of counsel and admitting that both he
9 and his estranged wife had testified falsely at the hearing
10 in order for him to satisfy the eligibility requirements for
11 cancellation of removal. Ineffective assistance of counsel
12 may be grounds for reopening upon a showing that counsel’s
13 performance deprived the noncitizen of a fair hearing and
14 caused prejudice, Iavorski v. INS, 232 F.3d 124, 128–29 (2d
15 Cir. 2000), but an IJ has the discretion to deny reopening
16 based on the noncitizen’s past conduct or where the IJ
17 determines that the underlying relief sought would not be
18 merited as a matter of discretion, see INS v. Abudu, 485 U.S.
19 94, 105 (1988) (“[I]n cases in which the ultimate grant of
20 relief is discretionary[,] . . . the BIA may leap ahead . . .
21 over the two threshold concerns (prima facie case and new
3
1 evidence/reasonable explanation), and simply determine
2 that . . . the movant would not be entitled to the
3 discretionary grant of relief.”); INS v. Rios-Pineda, 471
4 U.S. 444, 451–52 (1985) (finding no abuse of discretion where
5 denial of reopening “was grounded in legitimate concerns
6 about the administration of the immigration laws and was
7 determined on the basis of the particular conduct of
8 respondents”).
9 The IJ did not abuse his discretion in denying reopening
10 because Rvalov admitted to testifying falsely to obtain an
11 immigration benefit. See Rios-Pineda, 471 U.S. at 451–52.
12 Contrary to Rvalov’s contention here that he timely retracted
13 his false testimony, the IJ properly found that Rvalov did
14 not retract the testimony until after relief was denied.
15 Moreover, both the form of cancellation of removal that Rvalov
16 initially sought and the form of cancellation he raised in
17 his motion to reopen are discretionary forms of relief. See
18 Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006)
19 (cancellation for nonpermanent residents under 8 U.S.C.
20 § 1229b(b)(1)); Rosario v. Holder, 627 F.3d 58, 60–62 (2d
21 Cir. 2010) (cancellation as battered or abused spouse of U.S.
4
1 citizen under § 1229b(b)(2)). The IJ thus has the discretion
2 to deny reopening even if Rvalov were eligible for those forms
3 of relief. See Abudu, 485 U.S. at 105.
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
5