         10-3428
         Poku v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A074 916 914
                           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 24th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROSEMARY S. POOLER,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       NANA OWUSU POKU,
14                Petitioner,
15
16                        v.                                    10-3428
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, ET AL.,
20                Respondents.
21       _____________________________________
22
23       FOR PETITIONER:               Nana Owusu Poku, pro se,
24                                     Wethersfield, Conn.
25
26       FOR RESPONDENTS:              Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director, Yanal Yousef,
29                                     Trial Attorney; Office of
30                                     Immigration Litigation, U.S.
31                                     Department of Justice, Washington
32                                     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 Nana Owusu Poku, a native and citizen of

 6   Ghana, seeks review of the July 26, 2010, decision of the

 7   BIA, affirming the July 21, 2009, decision of Immigration

 8   Judge (“IJ”) Michael Straus, denying his motion to reopen

 9   removal proceedings.   In re Nana Owusu Poku, No. A074 916

10   914 (B.I.A. Jul. 26, 2010), aff’g No. A074 916 914 (Immig.

11   Ct. Hartford, Jul. 21, 2009).       We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       We review the agency’s denial of a motion to reopen for

15   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

16   Cir. 2005) (per curiam).   “An abuse of discretion may be

17   found . . . where the [agency’s] decision provides no

18   rational explanation, inexplicably departs from established

19   policies, is devoid of any reasoning, or contains only

20   summary or conclusory statements; that is to say, where the

21   [agency] has acted in an arbitrary or capricious manner.”

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

23   Cir. 2001) (internal citations omitted).

                                     2
 1        We find no abuse of discretion in this case.        An IJ

 2   has “broad discretion with respect to calendaring matters.”

 3   Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.

 4   2006)(internal quotations omitted).   We review “an IJ’s

 5   decision to establish and enforce filing deadlines for the

 6   submission of documents” for abuse of discretion.        Dedji v.

 7   Mukasey, 525 F.3d 187, 191 (2d Cir. 2008); see also 8 C.F.R.

 8   § 1003.31(a) (“All documents and applications that are to be

 9   considered in a proceeding before an Immigration Judge must

10   be filed with the Immigration Court having administrative

11   control over the Record of Proceedings.”); 8 C.F.R. §

12   1003.31(c) (“The Immigration Judge may set and extend time

13   limits for the filing of applications. . . .     If an

14   application . . . is not filed within the time set by the

15   Immigration Judge, the opportunity to file that application

16   or document shall be deemed waived.”).

17       The IJ properly exercised his discretion to deny Poku’s

18   motion to reopen because Poku’s failure to file his

19   application for cancellation of removal by the deadline set

20   by the IJ constituted a waiver of his opportunity to file

21   such an application.   See 8 C.F.R. § 1003.31(c).    The IJ

22   warned Poku, both at a hearing and in writing, that his


                                   3
 1   cancellation of removal application must be filed on or

 2   before June 26, 2009 or his application would be deemed

 3   abandoned and an order of removal would be issued.     The

 4   record shows that Poku was provided approximately six months

 5   to file his application, the IJ set a clear deadline for the

 6   filing of the application, and the cancellation of removal

 7   application was not filed by the deadline.    Therefore, it

 8   cannot be said that the denial of Poku’s motion to reopen

 9   was an abuse of discretion.

10       Furthermore, while Poku now raises a claim that his

11   counsel was ineffective for failing to timely file his

12   cancellation of removal application, this claim is

13   unexhausted as it was not raised before the BIA.     See 8

14   U.S.C. § 1252(d)(1); see also Arango-Aradondo v. INS, 13

15   F.3d 610, 614 (2d Cir. 1994) (declining to address

16   ineffective assistance of counsel claim that was not

17   exhausted before the agency).

18       For the foregoing reasons, the petition for review is

19   DENIED and the stay of removal that the Court previously

20   granted in this petition is VACATED.

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23




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