         10-2293-ag
         Reyes-Francisco v. Holder
                                                                                       BIA
                                                                               A075 418 435
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                        Circuit Judges.
11       _________________________________________
12
13       ENRIQUE REYES-FRANCISCO,
14                Petitioner,
15
16                           v.                                   10-2293-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                  Howard Laurence Baker, Wilens &
24                                        Baker, P.C., New York, New York.
25
26       FOR RESPONDENT:                  Tony West, Assistant Attorney
27                                        General; Mary Jane Candaux,
28                                        Assistant Director; Rosanne M.
29                                        Perry, Attorney, Office of
30                                        Immigration Litigation, United
31                                        States Department of Justice,
32                                        Washington, 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 Enrique Reyes-Francisco, a native and

 6   citizen of Mexico, seeks review of a May 13, 2010 decision

 7   of the BIA denying his motion to reconsider its denial of

 8   his motion to reopen.    In re Enrique Reyes-Francisco, No.

 9   A075 418 435 (B.I.A. May 13, 2010).       We assume the parties’

10   familiarity with the underlying facts and procedural history

11   of the case.

12       We review for abuse of discretion the BIA’s denial of a

13   motion to reconsider.    See Jin Ming Liu v. Gonzales, 439

14   F.3d 109, 111 (2d Cir. 2006).       As an initial matter, because

15   Reyes-Francisco has filed a timely petition for review from

16   the denial of his motion to reconsider, but not from the

17   underlying decision for which reconsideration is sought, we

18   review only the denial of the motion to reconsider.       See Ke

19   Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d

20   Cir. 2001).    We therefore lack jurisdiction to review his

21   ineffective assistance of counsel claim against Ms. Sheri

22   Paige, which he raised in his motion to reopen.       See 8

23   U.S.C. § 1252(b)(1).

                                     2
 1       The BIA did not abuse its discretion in denying Reyes-

 2   Francisco’s motion to reconsider.   Reyes-Francisco argues

 3   that the BIA erred in finding that he could not properly

 4   bring a claim of ineffective assistance of counsel against

 5   Mr. Mario DeMarco – the sole principal of the law firm that

 6   employed Reyes-Francisco’s attorney of record, Mr. Mark C.

 7   Salvucci – when Mr. DeMarco did not personally represent him

 8   in his removal proceedings.   In rejecting this claim, the

 9   BIA reasonably relied on the agency’s regulations, which

10   recognize only those attorneys who submit a notice of

11   appearance and personally practice before the Executive

12   Office for Immigration Review.    See 8 C.F.R. § 1001.1(i)

13   (defining the term practice as “the act or acts of any

14   person appearing in any case, either in person or through

15   the preparation or filing of any brief or other document,

16   paper, application, or petition on behalf of another person

17   or client before or with DHS, or any immigration judge, or

18   the Board.”); see also 8 C.F.R. § 1292.4(a) (“An appearance

19   shall be filed on the appropriate form by the attorney or

20   representative appearing in each case”); cf. Fuentes-Argueta

21   v. INS, 101 F.3d 867, 872-73 (2d Cir. 1996) (finding no

22   denial of the right to counsel in the decision of an


                                   3
 1   Immigration Judge declining to recognize as counsel of

 2   record an attorney who had not filed a formal notice of

 3   appearance).   Furthermore, contrary to Reyes-Francisco’s

 4   argument, the BIA did not abuse its discretion by failing

 5   explicitly to consider his challenge to its due diligence

 6   finding because its alternative finding that there was no

 7   basis for an ineffective assistance of counsel claim against

 8   Mr. DeMarco was dispositive of Reyes-Francisco’s motion to

 9   reconsider.    See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

10   2006) (requiring an alien to demonstrate due diligence

11   independent from the requirement of demonstrating

12   ineffective assistance of former counsel).

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any stay of

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DISMISSED as moot. Any pending request for

18   oral argument in this petition is DENIED in accordance with

19   Federal Rule of Appellate Procedure 34(a)(2), and Second

20   Circuit Local Rule 34.1 (b).

21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk
23
24




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