         12-1661
         Williams v. Holder
                                                                                       BIA
                                                                               A074 840 789
                               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 25th day of June, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       SHAWN ONEAL WILLIAMS, AKA SHAWN
15       O’NEAL WILLIAMS,
16                Petitioner,
17
18                            v.                                12-1661
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:                Ransford B. McKenzie, Brooklyn, New
26                                      York.
27
28       FOR RESPONDENT:                Stuart F. Delery, Principal Deputy
29                                      Assistant Attorney General; Shelley
 1                             R. Goad, Assistant Director; Monica
 2                             Antoun, Trial Attorney, Office of
 3                             Immigration Litigation, United
 4                             States Department of Justice,
 5                             Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Shawn Oneal Williams, a native and citizen of Jamaica,

12   seeks review of a March 30, 2012, decision of the BIA

13   denying his motion to reopen.       See In re Shawn Oneal

14   Williams, No. A074 840 789 (B.I.A. Mar. 30, 2012).          We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history of this case.

17       We review the BIA’s denial of a motion to reopen for

18   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

19   Cir. 2006).     An alien seeking to reopen proceedings is

20   required to file a motion to reopen no later than 90 days

21   after the date on which the final administrative decision

22   was rendered.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

23   § 1003.2(c)(2).     There is no dispute that Williams’s motion

24   to reopen, filed more than six years after his final order

25   of removal, was untimely.

26

                                     2
 1       Williams contends, however, that the time limitation

 2   should be tolled because he exercised due diligence in

 3   pursuing his claim that the first attorney who represented

 4   him in his removal proceedings provided ineffective

 5   assistance.   See Rashid v. Mukasey, 533 F.3d 127, 132 (2d

 6   Cir. 2008) (holding that in order to warrant equitable

 7   tolling, alien claiming ineffective assistance of counsel

 8   must demonstrate “due diligence in pursuing the case during

 9   the period the alien seeks to toll” (internal quotation

10   marks omitted)).

11       Williams is correct that the BIA erred in addressing

12   whether Williams’s second immigration attorney was

13   ineffective, while Williams’s claim was that his first

14   immigration attorney was ineffective.   Nonetheless, we

15   decline to remand as remand would be futile.   See Alam v.

16   Gonzales, 438 F.3d 184, 187 (2d Cir. 2006) (holding that

17   remand is not required “where there is no realistic

18   possibility that, absent the errors, the IJ or BIA would

19   have reached a different conclusion” (internal quotation

20   marks omitted)).   The BIA’s finding that Williams failed to

21   substantially comply with the requirements of Matter of

22   Lozada, 19 I. & N. Dec. 637 (BIA 1988), with respect to his


                                   3
 1   second attorney is equally applicable to his claim regarding

 2   his first attorney. Although Williams asserts that he tried

 3   but failed to contact his first attorney, he offers no

 4   explanation of what efforts, if any, he made in that regard,

 5   and so has not demonstrated due diligence and has not

 6   satisfied the first requirement of Lozada. See id. at 639;

 7   Jian Hua Wang v. B.I.A., 508 F.3d 710, 715 (2d Cir. 2007)

 8   (rejecting petitioner’s claim of due diligence where he

 9   failed to “establish[] in the written record . . . what

10   measures he took to reopen his case”). Furthermore, in his

11   affidavit in support of his motion to reopen, Williams

12   offered no details regarding his agreement with his first

13   attorney, and did not furnish evidence that he filed a

14   disciplinary charge against the attorney. See Lozada, 19 I.

15   & N. Dec. at 639. Failure to comply with the Lozada

16   requirements is a valid ground for the BIA to deny

17   reopening.   See Jian Yun Zheng v. U.S. Dep’t of Justice, 409

18   F.3d 43, 46 (2d Cir. 2005).

19       For the foregoing reasons, the petition for review is

20   DENIED and the Government’s motion to strike is DENIED as

21   moot.   As we have completed our review, any stay of removal

22   that the Court previously granted in this petition is


                                   4
1   VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8




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