09-1091-ag
Ahmad v. Holder



                                    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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-fourth day of June, two thousand and ten.

PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                               Circuit Judges.
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HAMAD AHMAD ,

                               Petitioner,

          v.                                                                               No. 09-1091-ag


ERIC H. HOLDER, JR ., United States Attorney General

                               Respondent.


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FOR PETITIONER:                          Lila Sljivar, Wilens & Baker, P.C., New York, NY.

FOR RESPONDENT:                          Colette J. Winston, Attorney, Office of Immigration
                                         Litigation (Tony West, Assistant Attorney General, David
                                         Bernal, Assistant Director, Office of Immigration Litigation,
                                         on the brief), Civil Division, U.S. Department of Justice,
                                         Washington, DC.

        Petition for review of an order of the Board of Immigration Appeals.

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.

       Petitioner Hamad Ahmad (“petitioner” or “Ahmad”), a native and citizen of Pakistan, seeks
review of a February 18, 2009 decision of the Board of Immigration Appeals (“BIA”) denying his
motion to remand his removal proceedings. Petitioner argues that he was entitled to a remand
because: (1) the Immigration Judge (“IJ”) who denied his application for cancellation of removal
under 8 U.S.C. § 1229b(b)(1) never informed him that he might be eligible for relief as a battered
spouse under 8 U.S.C. § 1229b(b)(2); and (2) his prior attorney was ineffective in failing to seek relief
under the special rule for battered spouses. See id. We assume the parties’ familiarity with the
remaining factual and procedural history of the case.

          Petitioner’s first argument—that the IJ erred in not informing petitioner that he might be
eligible for relief as a battered spouse—was never raised before the BIA. We therefore cannot
consider it. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien
has exhausted all administrative remedies available to the alien as of right . . . .”); Zhong v. U.S. Dep’t
of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007) (explaining that, “though not jurisdictional, issue
exhaustion is mandatory” and that “[i]f the government points out to the appeals court that an issue
relied on before that court by a petitioner was not properly raised below, the court must decline to
consider that issue” (emphases added)).

        We also conclude that petitioner’s second argument—that his prior counsel was
ineffective—does not warrant a remand. We review motions to remand, like motions to reopen, for
abuse of discretion. Singh v. U.S. Dep’t of Justice, 461 F.3d 290, 293 (2d Cir. 2006); see Debeatham v.
Holder, 602 F.3d 481, 484 (2d Cir. 2010). “The BIA abuses its discretion when its decision provides
no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.
2009) (internal quotation marks omitted).




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          Among other things,1 an alien claiming ineffective assistance of counsel must “establish that
‘counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of the
hearing.’” Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (quoting Jian Yun Zheng v. U.S. Dep’t of
Justice, 409 F.3d 43, 46 (2d Cir. 2005)). A deprivation of fundamental fairness requires a showing “1)
that competent counsel would have acted otherwise, and 2) that [petitioner] was prejudiced by his
counsel’s performance.” Rabiu v. I.N.S., 41 F.3d 879, 882 (2d Cir. 1994) (internal quotation marks
omitted). To show prejudice arising from the failure to pursue a particular form of relief, a
petitioner “must make a prima facie showing that he would have been eligible for the relief and that
he could have made a strong showing in support of his application.” Id.

         To demonstrate eligibility for cancellation of removal under the special rule for battered
spouses, petitioner was required to show (1) that he had been battered or “subjected to extreme
cruelty” by a spouse, (2) that he had been physically present in the United States for a continuous
period of at least 3 years, (3) that he had been a person of good moral character during that period,
(4) that he was not inadmissable or deportable as a security risk or as a result of criminal convictions,
and (5) that removal would result in extreme hardship to petitioner, or a child or parent of
petitioner. See 8 U.S.C. § 1229b(b)(2)(A)(i)-(v).

        Petitioner has not shown prejudice here because he has not made a prima facie showing that
he was eligible for relief as a battered spouse, much less that he could have made a “strong showing
in support of his application.” Rabiu, 41 F.3d at 882. Although petitioner’s motion to remand cited
physical abuse he had allegedly suffered at the hand his ex-wife, we agree with the BIA that the
motion, among other things, “fail[ed] to address, much less demonstrate, how [petitioner’s] removal
would result in ‘extreme hardship’ to [petitioner] or any qualifying relative.” J.A. 3. Accordingly,
petitioner failed to demonstrate prejudice resulting from his counsel’s alleged ineffective assistance.

        Petitioner responds that he had demonstrated extreme hardship to his daughter resulting
from his removal during proceedings before the IJ, and that the “particular facts of this case
required the BIA to look beyond the motion [to remand] to the record below.” Reply Br. 4. Like
this Court, however, the BIA is under no obligation to comb the record to create an argument for
the petitioner that he has failed to make for himself. Cf. Sioson v. Knights of Columbus, 303 F.3d 458,
459-60 (2d Cir. 2002) (noting that it is not the Court’s function to “form an [appellant’s] argument
for him, by looking into the record to document the ‘facts’ . . . and then examining various
combinations of these facts in the light of the legal doctrines he . . . mentions”). Because


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         An alien claiming ineffective assistance of counsel must comply with the procedural
requirements set forth by the BIA in In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). Debeatham,
602 F.3d at 484-85. Because the government does not dispute that petitioner has complied with the
requirements set forth in Lozada, we do not discuss those requirements here.
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petitioner’s motion to remand in the BIA failed to demonstrate that he was eligible for relief as a
battered spouse and that he could have made a strong showing in support of his application, it was
not an “abuse of discretion” for the BIA to deny petitioner’s motion.

                                         CONCLUSION

         We have considered all of the petitioner’s arguments and find them to be without merit. 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.


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




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