    17-521
    Assad v. Sessions
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A087 146 447
                             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 REPRESsENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 28th day of August, two thousand eighteen.

    PRESENT:
             JON O. NEWMAN,
             GERARD E. LYNCH,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    MUHAMMAD ASSAD, AKA ASAD BUTT,
             Petitioner,

                        v.                                       17-521
                                                                 NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Naresh M. Gehi, Forest Hills, NY.

    FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
                                        Attorney General; Shelley R. Goad,
                                        Assistant Director; Russell J.E.
                                        Verby, Senior Litigation Counsel,
                                        Office of Immigration Litigation,
                                        United States Department of
                                        Justice, Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner     Muhammad   Assad,   a   native   and   citizen   of

Pakistan, seeks review of a January 27, 2017, decision of the

BIA affirming a December 23, 2015, decision of an Immigration

Judge (“IJ”) denying Assad’s motion to reopen his removal

proceedings.    In re Muhammad Assad, No. A 087 146 447 (B.I.A.

Jan. 27, 2017), aff’g No. A087 146 447 (Immig. Ct. N.Y. City

Dec. 23, 2015).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Assad’s petition is timely filed only as to the denial

of reopening, so our review is limited to that decision.

See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-

90 (2d Cir. 2001).    We have reviewed the IJ’s decision as

supplemented by the BIA.      Gertsenshteyn v. U.S. Dep’t of

Justice, 544 F.3d 137, 142 (2d Cir. 2008).          We review the

agency’s denial of a motion to reopen for abuse of

discretion, “mindful that motions to reopen ‘are

disfavored.’”     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
                                 2
2006, quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992).

To obtain reopening based on new evidence, a movant must

present previously unavailable evidence that establishes

his prima facie eligibility for the relief sought.       See 8

C.F.R. § 1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104

(1988).   For reopening based on ineffective assistance of

counsel, a movant must establish that counsel’s performance

resulted in actual prejudice.       See Esposito v. INS, 987

F.2d 108, 111 (2d Cir. 1993).       In sum, to obtain reopening

based on ineffective assistance or new evidence, a movant

has to show that reopening is likely to change the result

of the proceedings.   Id.; Jian Hui Shao v. Mukasey, 546

F.3d 138, 168 (2d Cir. 2008) (reopening “requires the alien

to carry the ‘heavy burden’ of demonstrating that the

proffered new evidence would likely alter the result in her

case”).   Assad did not meet his burden of showing prejudice

because he did not show that the outcome would have been

different had proceedings been reopened.

    Assad essentially argues that had his counsel presented

Assad with the opportunity to testify, the agency would not

have found him removable for a misrepresentation because
                                3
Assad’s testimony would have proved that his and his wife’s

affidavits were coerced.   But the agency found that Assad

made a material representation on his adjustment

application even if the affidavits were not considered.

Accordingly, he did not show that the failure to offer his

testimony was prejudicial.   See Esposito, 987 F.2d at 111.

A letter from Assad’s landlord contradicted Assad’s

allegation that he had been living with his wife when he

filed his application for permanent residence, and the IJ

was not required to give greater weight to affidavits from

Assad’s friends, which all contained near-identical

language and repeated an incorrect spelling of Assad’s

address.   Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d

517, 524 (2d Cir. 2007) (noting that “striking similarities

between affidavits are an indication that the statements

are ‘canned.’”); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.

209, 215 (BIA 2010) (giving diminished weight to letters

from relatives because they were from interested witnesses

not subject to cross-examination), remanded on other

grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

2012).
                              4
    Assad also requested reopening on the ground that his

counsel should have filed an asylum application on his

behalf.   Assad did not meet his burden for reopening

because the country conditions evidence offered in support

of his application was not new or previously unavailable.

See 8 C.F.R. § 1003.2(c)(1); Abudu, 485 U.S. at 104.

Moreover, as the agency found, Assad did not allege, much

less prove, that he told any of his former attorneys that

he feared returning to Pakistan.

     Finally, Assad argued for reopening to seek a

redetermination of the denial of the removal of the

conditions on his permanent resident status and to request

a waiver of the joint filing requirement.   But the agency

reasonably concluded that Assad failed to demonstrate that

he was prima facie eligible for a “good faith” waiver

because the evidence showed that he misrepresented material

information (the address where he lived with his wife) and

thus failed to demonstrate that he had entered his marriage

in good faith.   See 8 U.S.C. § 1186a(a)(4)(B); see also 8

C.F.R. § 1003.2(c)(1); Abudu, 485 U.S. at 104.


                              5
    For the foregoing reasons, the petition for review is

DENIED.

                          FOR THE COURT:
                          Catherine O’Hagan Wolfe,
                          Clerk of Court




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