         11-3861
         Malcolm v. Holder
                                                                                       BIA
                                                                               A040 089 328
                              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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CARL ANTHONY MALCOLM,
14                Petitioner,
15
16                           v.                                 11-3861
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Barbara Dominique, The Dominique
24                                     Group, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Linda S. Wernery,
28                                     Assistant Director; William C.
29                                     Minick, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, 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       Carl Anthony Malcolm, a native and citizen of Jamaica,

 6   seeks review of a September 6, 2011, order of the BIA

 7   denying his motion to reopen his removal proceedings.    In re

 8   Carl Anthony Malcolm, No. A040 089 328 (B.I.A. Sep. 6,

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

10   underlying facts and procedural history of the 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).   In this case, the BIA did not

14   abuse its discretion in denying Malcolm’s motion.

15       An alien raising a claim of ineffective assistance of

16   counsel must substantially comply with the procedures for

17   raising such claims set forth in Matter of Lozada, 19 I. &

18   N. Dec. 637 (BIA 1988).    See Jian Yun Zheng v. U.S. Dep’t of

19   Justice, 409 F.3d 43, 46 (2d Cir. 2005).    The BIA reasonably

20   concluded that Malcolm did not demonstrate that he notified

21   his former attorney of his allegations against her as

22   required by Lozada, because he did not submit any evidence

23   of such notification.

                                    2
 1       Additionally, the record supports the BIA’s conclusion

 2   that Malcolm failed to demonstrate that he was prejudiced by

 3   his former attorney’s alleged ineffective assistance.     See

 4   Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006).    Malcolm

 5   argues that his attorney should not have conceded before the

 6   Immigration Judge (“IJ”) that he was convicted under

 7   subsection (1) of NY PENAL LAW § 120.00.   But the BIA

 8   reasonably concluded that Malcolm was not prejudiced by his

 9   attorney’s concession, because the record of conviction

10   submitted by the government in front of the IJ established

11   that Malcolm’s conviction was under that subsection.

12   Similarly, the BIA reasonably concluded that Malcolm failed

13   to demonstrate that he was prejudiced by his former

14   attorney’s failure to apply for relief under the Convention

15   Against Torture (“CAT”), as Malcolm’s motion to reopen did

16   not establish that he was eligible for CAT relief, because

17   he did not show that any harm he might face from gang

18   violence in Jamaica would occur with the consent or

19   acquiescence of that country’s authorities.    See Khouzam v.

20   Ashcroft, 361 F.3d 161, 168-71 (2d Cir. 2004).

21       For the foregoing reasons, the petition for review is

22   DENIED.   Any pending request for oral argument in this


                                   3
1   petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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