         12-612
         Seybout v. Holder
                                                                                       BIA
                                                                               A096 253 019
                              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 3rd day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       AMAR OULD SEYBOUT,
14                Petitioner,
15
16                           v.                                 12-612
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gisela Chavez-Garcia, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Linda S. Wernery,
28                                     Assistant Director; Walter Bocchini,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 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 Amar Ould Seybout, a native and citizen of

 6   Mauritania, seeks review of January 17, 2012, decision of

 7   the BIA denying his motion to reopen.    In re Amar Ould

 8   Seybout, No. A096 253 019 (B.I.A. Jan. 17, 2012).    We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history in this case.

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

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

13   Cir. 2006).   To prevail on a claim of ineffective assistance

14   of counsel, a movant must file a motion with the agency that

15   includes: (1) an affidavit setting forth in detail the

16   agreement with former counsel concerning what action would

17   be taken and what counsel did or did not represent in this

18   regard; (2) proof that the alien notified former counsel of

19   the allegations of ineffective assistance and allowed

20   counsel an opportunity to respond; and (3) a statement as to

21   whether the alien filed a complaint with any disciplinary

22   authority regarding counsel’s conduct.    See Twum v. INS, 411

23   F.3d 54, 59 (2d Cir. 2005) (citing Matter of Lozada, 19 I.&

                                   2
 1   N. Dec. 637, 639 (BIA 1998)).       This Court has made clear

 2   that “an alien who has failed to comply substantially with

 3   the Lozada requirements in [his] motion to reopen before the

 4   BIA forfeits [his] ineffective assistance of counsel claim.”

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

 6   Cir. 2005).   However, “slavish adherence” to Lozada’s

 7   requirements is not necessary.       Yi Long Yang v. Gonzales,

 8   478 F.3d 133, 142 (2d Cir. 2007).

 9       In this case, the BIA correctly found that Seybout

10   failed substantially to comply with Lozada in making an

11   ineffective assistance of counsel claim because there is no

12   evidence that Seybout properly informed his previous

13   attorney of all of the allegations against him.       See Twum,

14   411 F.3d at 59; Jian Yun Zheng, 409 F.3d at 47.       Seybout

15   claims that he mailed his former attorney both a brief

16   letter stating that the attorney had failed to file a brief

17   on his behalf, as well as a copy of an affidavit raising

18   numerous additional allegations.       However, there is no

19   evidence in the record to support this conclusion, as the

20   letter sent to Seybout’s former attorney does not reference

21   the affidavit or an enclosure, and nowhere in Seybout’s

22   motion to reopen does he mention that the affidavit was sent


                                     3
 1   to former counsel.     See Kulhawik v. Holder, 571 F.3d 296,

 2   298 (2d Cir. 2009) (unsworn statements of an attorney are

 3   not evidence).    As the affidavit contained additional

 4   allegations of ineffective assistance, the BIA properly

 5   found that Seybout failed to provide his former attorney

 6   with an opportunity to respond.      See Twum, 411 F.3d at 59.

 7   Thus, because Seybout failed to demonstrate substantial

 8   compliance with Lozada, the BIA did not abuse its discretion

 9   in denying Seybout’s motion to reopen.      Ali, 448 F.3d at

10   517.

11          To the extent that Seybout challenges the agency’s

12   underlying denial of relief, we lack jurisdiction to

13   consider it.     See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

14   F.3d 83, 89-90 (2d Cir. 2001).      Regardless, Seybout’s asylum

15   and withholding claims were presented to this Court on

16   appeal, and were found to lack an arguable basis in either

17   law or fact.

18          For the foregoing reasons, the petition for review is

19   DENIED.

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk




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