    15-2097
    Loja-Cajamarca v. Lynch
                                                                                       BIA
                                                                               A088 441 369
                              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
    20th day of September, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    LUIS AMABLE LOJA-CAJAMARCA,
             Petitioner,

                     v.                                              15-2097
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      James A. Welcome, Waterbury, CT.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Daniel
                                         E. Goldman, Senior Litigation
                                         Counsel; Mona Maria Yousif,
                                         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    Luis   Amable   Loja-Cajamarca,    a   native   and

citizen of Ecuador, seeks review of a June 2, 2015, decision

of the BIA denying his motion to reopen.      In re Luis Amable

Loja-Cajamarca, No. A088 441 369 (B.I.A. June 2, 2015).            We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

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

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

2006).    An alien seeking to reopen proceedings may file one

motion to reopen no later than 90 days after the final

administrative decision is rendered.      8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).         The time

limitation may be excused to accommodate a claim of ineffective

assistance of counsel.    Rashid v. Mukasey, 533 F.3d 127, 130

(2d Cir. 2008); Jin Bo Zhao v. INS, 452 F.3d 154, 159-60 (2d

Cir. 2006).   To warrant that equitable tolling, Loja-Cajamarca

had to “demonstrate . . . that [he] has exercised due diligence
                                  2
in pursuing [his claim].”    Iavorski v. INS, 232 F.3d 124, 135

(2d Cir. 2000).   And he had to demonstrate prejudice: that his

“counsel’s performance was so ineffective . . . [that it]

impinged upon the fundamental fairness of the hearing in

violation of the fifth amendment due process clause.”      Rabiu

v. INS, 41 F.3d 879, 882 (2d Cir. 1994).     The BIA was within

its discretion to find that Loja-Cajamarca’a untimely motion

failed on both scores.

    The due diligence inquiry has two steps: first, determine

“whether and when the ineffective assistance ‘[was], or should

have been, discovered by a reasonable person in the situation.’

Then, petitioner bears the burden of proving that he has

exercised due diligence in the period between discovering the

ineffectiveness of his representation and filing the motion to

reopen.”   Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007)

(quoting Iavorski, 232 F.3d at 134).        The petitioner must

demonstrate “due diligence” in pursuing a claim “during the

entire period he . . . seeks to toll.”   Rashid, 533 F.3d at 132.

    The BIA reasonably found that Loja-Cajamarca knew or should

have known about his counsel’s purported error at his May 2011

hearing, when she withdrew his application for withholding of
                                3
removal on the record.   After announcing his oral decision, the

IJ confirmed that Loja-Cajamarca understood both English and

the decision.   Using that hearing date as a starting point, the

BIA was within its discretion to find that waiting nearly five

years to raise the ineffective assistance claim does not amount

to due diligence.   Iavorski, 232 F.3d at 134.

    Loja-Cajamarca argues that the BIA should have started the

diligence clock in February 2013, when it dismissed his appeal,

rather than in May 2011, when he knew about the purported error.

As the Government notes, this argument is unexhausted.      Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007)

(“Judicially-imposed doctrines of issue exhaustion . . . will

usually mean that issues not raised to the BIA will not be

examined by the reviewing court.”); 8 U.S.C. § 1252(d)(1).

Even if reached, it lacks merit: Loja-Cajamarca waited two years

after the BIA’s decision on appeal to move to reopen.       See

Rashid, 533 F.3d at 132.

    Nor did Loja-Cajamarca demonstrate prejudice.    He alleged

that counsel was ineffective for withdrawing his application

for withholding of removal and filing an inadequate appellate

brief, but he did not identify any basis for withholding or what
                               4
counsel should have argued on appeal.                 Cf. Changxu Jiang v.

Mukasey,   522   F.3d   266,   270       (2d   Cir.    2008)   (finding   no

ineffective assistance where counsel made the “strategic

decision” to withdraw the alien’s application for withholding

of removal and seek only voluntary departure).                 For the same

reason, Loja-Cajamarca’s due process arguments, to the extent

he exhausted them, fail.             Rabiu, 41 F.3d at 882.               His

ineffective assistance claim appears to be a pretext for

reopening so that he can apply for cancellation based on the

birth of his child in 2014.     His counsel could not have sought

cancellation on that basis in 2011, and that form of relief does

not provide any exception to the time limitation on reopening.

    Loja-Cajamarca criticizes the BIA decision as lacking

adequate explanation.     But the BIA applied this Court’s law to

the facts of Loja-Cajamarca’s case.            Nothing more was required.

Cf. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d

Cir. 2001) (“An abuse of discretion may be found . . . where

the [BIA’s] decision provides no rational explanation,

inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory

statements; that is to say, where the Board has acted in an
                                     5
arbitrary or capricious manner.” (internal citations

omitted)).

    Loja-Cajamarca      dedicates       the   bulk   of   his    brief    to

describing his compliance with the procedures laid out in Matter

of Lozada, 19 I. & N. Dec. 637 (BIA 1988).                But the BIA’s

decision   did   not   rest   on    failure    to    comply     with   those

procedures, which are not enough: he still needed to show due

diligence and prejudice.

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.     Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                                   FOR THE COURT:
                                   Catherine O=Hagan Wolfe, Clerk




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