     16-821
     Ugbajah v. Sessions
                                                                                       BIA
                                                                               A091 358 822
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   12th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   IYK O. UGBAJAH, AKA IYK SIX,
14   AKA FRED IKECHI UGBAJA,
15            Petitioner,
16
17                     v.                                            16-821
18                                                                   NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Paul B. Grotas, New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Melissa
28                                       Neiman-Kelting, Senior Litigation
29                                       Counsel; Melissa K. Lott, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       DC.
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 is

4    DENIED.

5        Petitioner Iyk O. Ugbajah, a native and citizen of Nigeria,

6    seeks review of a February 17, 2016 decision of the BIA denying

7    Ugbajah’s motion to reopen.    In re Iyk O. Ugbajah, No. A091 358

8    822 (B.I.A. Feb. 17, 2016).   We assume the parties’ familiarity

9    with the underlying facts and procedural history in this case.

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

11   of discretion, “mindful that motions to reopen ‘are

12   disfavored.’”    Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

13   (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).         An alien

14   may file one motion to reopen no later than 90 days after the

15   final administrative decision is rendered.          8 U.S.C.

16   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).            Ugbajah’s

17   motion was untimely.

18       The   time   limitation   may    be   excused   for   a   claim    of

19   ineffective assistance of counsel.        Rashid v. Mukasey, 533 F.3d

20   127, 130 (2d Cir. 2008).         To prevail on an ineffective

21   assistance claim, however, an alien must substantially comply

22   with Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).             See

23   Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d

24   Cir. 2005).   Lozada requires:
                                      2
 1       (1) an affidavit setting forth in detail the agreement
 2       with former counsel concerning what action would be
 3       taken and what counsel did or did not represent in this
 4       regard; (2) proof that the alien notified former
 5       counsel of the allegations of ineffective assistance
 6       and allowed counsel an opportunity to respond; and (3)
 7       if a violation of ethical or legal responsibilities
 8       is claimed, a statement as to whether the alien filed
 9       a complaint with any disciplinary authority regarding
10       counsel’s conduct and, if a complaint was not filed,
11       an explanation for not doing so.
12
13   Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005).   Failure to comply

14   substantially with the three Lozada requirements may forfeit

15   an ineffective assistance claim in this Court. See Jian Yun

16   Zheng, 409 F.3d at 46-47.

17       The BIA had the discretion to deny Ugbajah’s motion.

18   First, Ugbajah failed to describe his agreement with counsel

19   (the first Lozada requirement), which, as the BIA noted, was

20   particularly relevant because Ugbajah’s removal hearing was

21   twice continued for his prior attorneys to investigate the

22   possibility of applying for asylum, withholding of removal, and

23   CAT relief.   Ugbajah’s affidavit in support of his motion to

24   reopen said that he wanted to apply for asylum, but not that

25   he asked counsel to do so.   On this record, the BIA was within

26   its discretion to find that, absent further detail regarding

27   any agreement between Ugbajah and counsel to file an asylum

28   application, Ugbajah failed to justify excusing the time

29   limitation applicable to his motion to reopen.


                                    3
1          Second, Ugbajah failed to submit evidence that he filed a

2    formal complaint against his attorney.           Ugbajah argues that

3    this Court has taken a flexible approach to this Lozada

4    requirement, and in support cites Esposito v. INS, where this

5    Court reached the ineffective assistance claim despite the

6    petitioner’s failure to file a complaint with a disciplinary

7    authority.    987 F.2d 108, 111 (2d Cir. 1993).        But there, the

8    petitioner provided “a reasonable explanation in his affidavit

9    (a belief that [his former attorney] had already been suspended

10   from the practice of law) for not doing so.”           Id.   Ugbajah’s

11   explanation--that he was unable to file a complaint against

12   counsel from the detention facility--was not reasonable since

13   he was represented by current counsel well before he moved to

14   reopen.    Accordingly, since he has failed to meet two of the

15   three     Lozada   requirements,       Ugbajah   has   forfeited   his

16   ineffective assistance claim.      See Jian Yun Zheng, 409 F.3d at

17   48.

18         Ugbajah argues that because the BIA declined to reach the

19   merits of his ineffective assistance claim, and failed to

20   consider his professed fear of returning to Nigeria and his

21   background documents, it violated his due process rights.          But

22   in Jian Yun Zheng, we held that the BIA may reject an ineffective

23   assistance claim for failure to comply with Lozada.           Jian Yun

24   Zheng, 409 F.3d at 48.   As in that case, the BIA’s decision “does
                                        4
1    not suggest that the appellate brief was not considered, but

2    only that the BIA found [the petitioner’s] motion insufficient

3    insofar as it did not comply with Lozada’s requirements.”       Id.

4    Moreover, it is unlikely that prior counsel’s “strategic

5    decision” not to pursue a “questionable asylum claim” made

6    Ugbajah’s   removal   proceedings   unfair.   Changxu   Jiang    v.

7    Mukasey, 522 F.3d 266, 270 (2d Cir. 2008).

8        For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot.    Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

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

15   34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O=Hagan Wolfe, Clerk




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