   18-109
   Perla v. Barr
                                                                        BIA
                                                                    Sichel, IJ
                                                                A094 100 352
                        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.

        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 12th day of February, two thousand twenty.

   PRESENT:
            ROBERT A. KATZMANN,
                 Chief Judge,
            JON O. NEWMAN,
            SUSAN L. CARNEY,
                 Circuit Judges.
   _____________________________________

   JOSE R. PERLA,
            Petitioner,

                   v.                                  18-109
                                                       NAC
   WILLIAM P. BARR, UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _____________________________________

   FOR PETITIONER:                 Bruno Joseph Bembi, Hempstead,
                                   NY.

   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
                                   General; Holly M. Smith, Senior
                                   Litigation Counsel, Jesse Lloyd
                                   Busen, Trial Attorney, 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 Jose R. Perla, a native and citizen of El

Salvador, seeks review of a December 21, 2017, decision of

the BIA affirming a May 11, 2017, decision of an Immigration

Judge (“IJ”) denying Perla’s motion to reopen.             In re Jose

R. Perla, No. A 094 100 352 (B.I.A. Dec. 21, 2017), aff’g No.

A 094 100 352 (Immig. Ct. N.Y. City May 11, 2017).          We assume

the   parties’    familiarity    with   the   underlying   facts   and

procedural history in this case.

      We review a denial of a motion to reopen for abuse of

discretion.      Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69

(2d Cir. 2008).      The agency did not abuse its discretion in

declining to reopen because Perla did not present new evidence

that was previously unavailable.        See INS v. Abudu, 485 U.S.

94, 104 (1988); see also 8 C.F.R. § 1003.23(b)(3) (“A motion

to reopen will not be granted unless the Immigration Judge is

satisfied that evidence sought to be offered is material and
                                   2
was not available and could not have been discovered or

presented at the former hearing.”).                  Perla attached to his

motion to reopen an asylum officer’s 1998 notes and a 2011

BIA decision temporarily suspending his former counsel from

practicing before the BIA.         Both of these documents predated

Perla’s 2016 immigration proceedings.                     Perla argues that

these documents were unavailable to him because he did not

have notice that his credibility was in question.                       However,

the    record     reflects       that       he     was        questioned   about

inconsistencies at his hearing and thus was on notice that

his credibility was at issue.                    Moreover, Perla had “the

ultimate    burden   of    introducing           [corroborating]        evidence

without prompting from the IJ.”                  Chuilu Liu v. Holder, 575

F.3d 193, 198 (2d Cir. 2009).

      To   the   extent   that    Perla      moved       to    reopen   based   on

ineffective assistance of counsel, the agency correctly found

that he failed to comply with the procedural requirements set

forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).

Perla failed to provide an affidavit detailing his agreement

with his former counsel, show that he informed his prior

counsel of his allegations, and explain why he did not file


                                        3
any complaints against his attorney.             See id. at 639.      Perla

is incorrect that Matter of Compean, 24 I. & N. Dec. 710 (A.G.

2009),   overruled   Matter    of       Lozada   because     the   Attorney

General vacated Matter of Compean and held that the agency

“should apply the pre-Compean standards to all pending and

future motions to reopen based upon ineffective assistance of

counsel, regardless of when such motions were filed.”               Matter

of Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009).                Accordingly,

Perla has forfeited his ineffective assistance of counsel

claim.   Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,

47 (2d Cir. 2005) (holding that “alien who has failed to

comply substantially with the Lozada requirements . . . before

the BIA forfeits h[is] ineffective assistance of counsel

claim in this Court”).

    Lastly, Perla’s remaining arguments are not properly

before this Court.     His petition is timely only as to the

denial of the motion to reopen, not the underlying decision

ordering him removed and denying cancellation of removal.

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

90 (2d Cir. 2001).       Accordingly, we are precluded from

reviewing   his   challenges    to       the   merits   of   the   adverse


                                    4
credibility   determination   and   the   actions   of   the   asylum

officer prior to his 2001 removal order.

    For the foregoing reasons, the petition for review is

DENIED.   All pending motions and applications are DENIED and

stays VACATED.

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




                                5
