         11-3715
         Huang v. Holder
                                                                                       BIA
                                                                               A099 183 869
                            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 19th day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAODAN HUANG,
14                Petitioner,
15
16                         v.                                   11-3715
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Chunyu Jean Wang, Flushing, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Terri J. Scadron,
27                                     Assistant Director; Richard
28                                     Zanfardino, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
32
 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 Xiaodan Huang, a native and citizen of

 6   China, seeks review of an August 24, 2011 decision of the

 7   BIA denying her motion to reopen her removal proceedings.

 8   In re Xiaodan Huang, No. A099 183 869 (B.I.A. Aug. 24,

 9   2011).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

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

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered, and is permitted to

17   file only one such motion.     See 8 U.S.C. § 1229a(c)(7)(A),

18   (C); 8 C.F.R. § 1003.2(c)(2).       There is no dispute that

19   Huang’s second motion to reopen, filed nearly two years

20   after the immigration judge’s (“IJ”) order of removal became

21   final, was untimely and number-barred. Id.

22       Huang contends that the time limitation should be

23   equitably tolled because of her prior counsel’s ineffective

                                     2
 1   assistance.   See Rashid v. Mukasey, 533 F.3d 127, 130 (2d

 2   Cir. 2008).   To prevail on a claim of ineffective assistance

 3   of counsel, a movant must show that competent counsel would

 4   have acted otherwise and that she was prejudiced by her

 5   counsel’s performance.   See Rabiu v. INS, 41 F.3d 879, 882

 6   (2d Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir.

 7   1993) (per curiam).   As discussed below, the BIA did not

 8   abuse its discretion in finding that Huang failed to show

 9   she was prejudiced by her counsel’s performance.

10       Huang alleges that she had three representatives, each

11   of whom provided ineffective assistance: (1) “Ms. Wang,” a

12   non-attorney immigration consultant who--allegedly

13   unbeknownst to Huang--filed an application for adjustment of

14   status for Huang based on a fraudulent marriage certificate;

15   (2) Gary Yerman, an attorney who represented Huang in

16   connection with her application for asylum, withholding or

17   removal and CAT relief, and who failed to discover Wang’s

18   fraudulent filings, including the fake marriage certificate,

19   and failed to file an ineffective assistance claim against

20   Wang; and (3) Gonzalo “Jun” Policarpio, a non-attorney

21   immigration consultant, who, among other things, caused

22   Huang to file an untimely motion to reopen and subsequent


                                   3
 1   appeal, and neglected to file an ineffective assistance

 2   claim against Wang and Yerman.      In essence, Huang claims

 3   that she was prejudiced by her former counsel’s errors

 4   because her application for asylum, withholding of removal,

 5   and CAT relief was denied on the basis of the fraudulent

 6   marriage certificate.

 7       We reject Huang’s claim.       First, Huang suffered no

 8   prejudice as a result of Wang’s fraudulent filing or

 9   Yerman’s failure to discover the fraud.      The IJ stated in

10   his 2009 written decision denying Huang’s first motion to

11   reopen that he had denied her applications for relief not

12   because she previously filed an application for adjustment

13   of status based on a fraudulent marriage certificate, but

14   based on his “determin[ation] that [she] had failed to

15   establish eligibility for such relief.”      October 14, 2009

16   Order at 2, Petr. Add. 295.

17       Moreover, Huang did not meet her burden of supporting

18   her motion with relevant evidence.      See INS v. Abudu, 485

19   U.S. 94, 110 (1988) (analogizing burden faced by alien

20   seeking to reopen removal proceedings to that of criminal

21   defendant moving for new trial).      BIA procedures allowed

22   Huang to file a motion for preparation of her transcripts in


                                    4
 1   support of her motion to reopen, but she failed to do so.

 2   See BIA Practice Manual 5.5 (“Transcript Requests”).

 3   Huang’s failure to support the allegations in her second

 4   motion to reopen with transcripts of either her hearings or

 5   the IJ’s 2009 oral decision is fatal to her ability to show

 6   that the denial rested in fact on–-or was even related to--

 7   the fraudulent marriage certificate or other prejudice

 8   arising from her counsel’s alleged errors.      See Rabiu, 41

 9   F.3d at 882.

10       Huang argues–-using an isolated quotation from a

11   recording of the IJ’s oral decision that is not in the

12   record–-that Wang’s submission of the fraudulent marriage

13   certificate wrongfully served as the basis for the IJ’s

14   decision to deny her applications for relief.     We are unable

15   to consider this argument, however, because our review is

16   limited to the record on appeal.   See Zhou Yun Zhang v. INS,

17   386.F.3d 66, 73-74 (2d Cir. 2004), overruled on other

18   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3D

19   296 (2d Cir. 2007).   She therefore cannot carry her burden

20   of demonstrating prejudice from Wang’s actions or Yerman’s

21   failure to discover Wang’s actions.   See id.

22       Similarly, without transcripts of her hearings and the

23   IJ’s 2009 oral decision, Huang cannot show that she was
                                   5
 1   prejudiced by any of Policarpio’s advice or actions,

 2   including his initial recommendation to forgo appeal and his

 3   decision not to raise an ineffective assistance of counsel

 4   claim against Yerman.   See id.   Accordingly, the BIA did not

 5   abuse its discretion in finding that Huang failed to show

 6   prejudice from her former counsel’s alleged errors and

 7   denying her motion to reopen as untimely.    See Rabiu, 41

 8   F.3d at 882; Abudu, 485 U.S. at 110.

 9       Huang also argues for the first time in this Court that

10   she was prejudiced by Yerman’s filing of a baseless

11   application for asylum rather than an application for

12   adjustment of status or cancellation of removal, for which

13   she was allegedly eligible.   Before the BIA, Huang alleged

14   something different: that Wang’s filing of the fraudulent

15   marriage certificate resulted in the denial of the

16   meritorious asylum claim that Yerman filed for her.     Because

17   Huang failed to present this new argument to the agency, we

18   decline to consider it now.   See Lin Zhong v. U.S. Dep’t of

19   Justice, 480 F.3d 104, 119-20 (2d Cir. 2006).

20       Huang’s failure to support her motion with transcripts

21   also prevents her from demonstrating that the IJ’s denial of

22   her application for asylum, withholding of removal, and

23   relief under the Convention Against Torture, violated her
                                   6
 1   due process rights.     See Abudu, 485 U.S. at 110.   Huang

 2   argues that in her motion she identified law previously

 3   unconsidered by the IJ.     But her counsel’s arguments, new or

 4   not, do not of themselves constitute grounds for a motion to

 5   reopen.   See INS v. Phinpathya, 464 U.S. 183, 188 n.6

 6   (1984).   And without transcripts of the IJ’s 2009 oral

 7   decision, Huang’s assertions regarding what the IJ

 8   considered are inadequately supported.     Thus, even assuming

 9   that the BIA erred in construing her due process allegations

10   as grounds for an untimely motion to reconsider, remanding

11   these proceedings would be futile.     See Cao He Lin v. U.S.

12   Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005) (holding

13   that remand is not required “where there is no realistic

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

15   have reached a different conclusion”).

16       Last, Huang’s argument that the BIA applied an

17   incorrect standard when it considered only whether she was

18   prejudiced by her former counsel’s errors is misplaced.       The

19   BIA’s findings that Huang failed to pursue diligently her

20   claims for ineffective assistance, and that she failed to

21   demonstrate prejudice from her counsel’s alleged errors,

22   each provided an independent basis for denying her untimely

23   motion to reopen.     Accordingly, the BIA had no obligation to
                                     7
1    assess whether competent counsel would have acted otherwise.

2    See Rashid, 533 F.3d at 130-131; Rabiu, 41 F.3d at 882-83;

3    see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a

4    general rule courts and agencies are not required to make

5    findings on issues the decision of which is unnecessary to

6    the results they reach.”).

7        For the foregoing reasons, the petition for review is

8    DENIED.

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk
11




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