     17-2969
     Farid v. Barr
                                                                                   BIA
                                                                               Lamb, IJ
                                                                           A079 713 969

                          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 15th day of          July, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MUHAMMAD ABDUL FARID, AKA
14   MOHAMMAD ABDUL FAREED,
15
16                         Petitioner,
17
18                   v.                                          17-2969
19                                                               NAC
20   WILLIAM P. BARR, UNITED STATES
21   ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                     Sanjay Chaubey, New York, NY.
27
28   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
1                                   Attorney General; Keith I.
2                                   McManus, Assistant Director;
3                                   Rosanne M. Perry, Trial Attorney,
4                                   Office of Immigration Litigation,
5                                   United States Department of
6                                   Justice, Washington, DC.
7
8          UPON DUE CONSIDERATION of this petition for review of a

9    Board of Immigration Appeals (“BIA”) decision, it is hereby

10   ORDERED, ADJUDGED, AND DECREED that the petition for review

11   is DENIED in part and DISMISSED in part.

12         Petitioner Muhammad Abdul Farid, a native and citizen of

13   Pakistan, seeks review of an August 25, 2017 decision of the

14   BIA affirming a March 13, 2017 decision of an Immigration

15   Judge (“IJ”) denying his motion to reopen.       In Muhammad Abdul

16   Farid, No. A079 713 969 (B.I.A. Aug. 25, 2017), aff’g No.

17   A079 713 969 (Immig. Ct. N.Y. City Mar. 13, 2017).        We assume

18   the   parties’   familiarity    with   the   underlying   facts   and

19   procedural history in this case, and the issues on appeal.

20         Under the circumstances of this case, we have reviewed

21   the IJ’s decision as supplemented by the BIA.         See Yan Chen

22   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       We review the

23   agency’s denial of a motion to reopen for abuse of discretion.

24   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).         An alien

25   generally may file one motion to reopen no later than 90 days

26   after   the   final   administrative     decision    is   rendered.
                                       2
1    8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. §§ 1003.2(c)(2),

2    1003.23(b)(1).     It is undisputed that Farid’s motion was

3    untimely because he filed it more than ten years after an IJ

4    ordered him removed.      As discussed below, he failed to

5    establish that either ineffective assistance of counsel or

6    lack of notice excused his late filing.

7    Ineffective Assistance

8        An untimely motion to reopen may be excused based on

9    ineffective assistance of counsel.       Rashid v. Mukasey, 533

10   F.3d 127, 130 (2d Cir. 2008).       To prevail on an ineffective

11   assistance claim, an alien must substantially comply with the

12   procedural requirements set forth in Matter of Lozada, 19 I.

13   & N. Dec. 637 (BIA 1988), which include setting forth the

14   agreement with former counsel, notifying former counsel of

15   the allegations, and filing a complaint with a disciplinary

16   authority.   See Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005).

17   “[A]n alien who has failed to comply substantially with the

18   Lozada requirements in h[is] motion to reopen before the BIA

19   forfeits h[is] ineffective assistance of counsel claim in

20   this Court.”     Jian Yun Zheng v. U.S. Dep’t of Justice, 409

21   F.3d 43, 47 (2d Cir. 2005).

22       Farid alleged that his former counsel failed to inform

                                     3
1    him of his removal order.         Because Farid concedes that he did

2    not   satisfy   any   of    the   procedural   requirements,    he   has

3    forfeited this ineffective assistance claim.           Id.     Although

4    he argues that he was not required to comply because the

5    ineffective assistance is clear from the record, the record

6    belies this claim.         See Yi Long Yang v. Gonzales, 478 F.3d

7    133, 143 (2d Cir. 2007) (finding substantial compliance with

8    Lozada when relevant facts were clear on record, IJ explicitly

9    relied on counsel’s competence, and counsel was “subsequently

10   disbarred for malpractice as an immigration attorney”).              The

11   record reflects that Farid had personal notice of his October

12   2006 hearing because the date was set at a prior hearing at

13   which he was present.        Moreover, as the BIA found, there is

14   nothing in the 2006 removal order to indicate that it was

15   entered in absentia, reflecting that Farid was also present

16   when the oral decision was read.          Farid also argues that he

17   could not comply with Lozada because he did not know his prior

18   counsel’s name or address, but counsel’s name and address

19   were listed on a hearing notice and therefore were available

20   to Farid.

21   Notice of Hearing

22         Nonetheless, assuming arguendo that the order was entered

                                          4
1    in absentia, the 90-day time limitation may still be excused

2    if Farid did not receive proper notice of his hearing.                        See

3    8 U.S.C. § 1229a(b)(5)(C)(ii).              However, the hearing notice

4    in the record reflects that it was provided in writing at the

5    hearing and that Farid was given oral notice in a language he

6    understood.       See Certified Administrative Record at 85-86.

7    Such notice is sufficient.                See 8 U.S.C. § 1229(a)(2)(A)

8    (written notice provided in person specifying time and place

9    of new hearing sufficient).

10   Sua Sponte Reopening

11          Although   the   agency    has      the    authority    to    reopen   an

12   immigration proceeding sua sponte even if the motion is

13   untimely, 8 C.F.R. § 1003.2(a); 8 C.F.R. § 1003.23(b)(1), we

14   lack     jurisdiction     to     review          the   agency’s      “entirely

15   discretionary” decision not to exercise that authority, Ali,

16   448 F.3d at 518.         Although we may remand if the agency

17   “misperceived the legal background and thought, incorrectly,

18   that a reopening would necessarily fail,” that exception does

19   not apply here because the agency simply found that Farid did

20   not present exceptional circumstances that would warrant

21   reopening.    Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

22   2009);    see In re     J-J-,    21   I.    &     N.   Dec.   976,   984   (BIA

                                           5
1    1997) (“The power to reopen on our own motion is not meant to

2    be used as a general cure for filing defects or to otherwise

3    circumvent the regulations, where enforcing them might result

4    in hardship.”).

5        For the foregoing reasons, the petition for review is

6    DENIED in part and DISMISSED in remaining part.   As we have

7    completed our review, any stay of removal that the Court

8    previously granted in this petition is VACATED, and any

9    pending motion for a stay of removal in this petition is

10   DISMISSED as moot.   Any pending request for oral argument in

11   this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe
16                               Clerk of Court
17




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