    09-0248-ag
    Riaz v. Holder
                                                                                  BIA
                                                                            Defonzo, IJ
                                                                          A097 524 083
                      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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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         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 2 nd day of March, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             ROBERT A. KATZMANN,
                           Circuit Judges,
             DENNY CHIN, *
                           District Judge.
    _________________________________________

    MOHAMMAD RIAZ,
             Petitioner,

                     v.                                      09-0248-ag

    ERIC H. HOLDER JR.,
    U.S. ATTORNEY GENERAL, **
             Respondent.
    _________________________________________


             *
           The Honorable Denny Chin of the United States District
    Court for the Southern District of New York, sitting by
    designation.
             **
            Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), United States Attorney General Eric H. Holder Jr.
    is substituted for former Attorney General Michael B.
    Mukasey as Respondent in this case.
FOR PETITIONER:        M ICHAEL R ADIGAN, Attorney, Khagendra
                       Gharti-Chhetry, Chhetry &
                       Associates, P.C., New York, N.Y.

FOR RESPONDENT:        J AMES A. H URLEY, Attorney, Tony West,
                       Assistant Attorney General, Thomas
                       B. Fatouros, Senior Litigation
                       Counsel, Office of Immigration
                       Litigation, Civil Division, 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 Mohammad Riaz, a native and citizen of

Pakistan, seeks review of the December 18, 2008 order of the

BIA affirming the November 7, 2006 decision of Immigration

Judge (“IJ”) Paul A. Defonzo denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).   In re Mohammad Riaz,

No. A097 524 083 (B.I.A. Dec. 18, 2008), aff’g No. A097 524

083 (Immig. Ct. N.Y. City Nov. 7, 2006).    We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

    When the BIA does not expressly “adopt” the IJ’s

decision, but its decision closely tracks the IJ’s

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reasoning, we may consider both the IJ’s and the BIA’s

opinions for the sake of completeness.   Zaman v. Mukasey,

514 F.3d 233, 237 (2d Cir. 2008).

    The BIA reasonably affirmed the IJ’s finding that Riaz

failed to prosecute his applications for asylum, withholding

of removal, and CAT relief.   Under 8 C.F.R. § 1003.31(c), an

“Immigration Judge may set and extend time limits for the

filing of applications and related documents . . . . If an

application or document is not filed within the time set by

the Immigration Judge, the opportunity to file that

application or document shall be deemed waived.”   We review

an IJ’s decision to establish and enforce deadlines for the

submission of documents for abuse of discretion.   See Dedji

v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008).

    On October 28, 2005, the IJ informed Riaz that he had

until January 6, 2006 to present an application for asylum

and withholding of removal.   That deadline was later

extended to March 31, 2006.   On March 31, 2006, Riaz

indicated that he did not prepare an application for asylum

and withholding, but that instead, he had decided to pursue

an application for alternative relief under the LIFE Act.

The IJ told Riaz that if he did not present an asylum and


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withholding application that day, it would be denied for

failure to prosecute.     He gave Riaz time to consider the

matter with counsel.    After conferring with counsel, Riaz

declined to file any application, and thus, the IJ denied it

for lack of prosecution.     Then, on August 18, 2006, Riaz

reversed course, and sought to submit an application for

asylum and withholding.     The IJ found that Riaz’s stated

excuses did not justify his failure to file by the deadline,

and reiterated that the denial stood.

    As the BIA found, the IJ did not abuse his discretion

in denying Riaz’s application for failure to prosecute.

Although Riaz was fully aware of the ramifications of

failing to adhere to the IJ’s instructions–having been

warned that his application would be denied if it was not

filed by March 2006—Riaz opted not to file his application

within that mandated time period.

    Riaz also asserts that the BIA erred by denying his

motion to remand.   A motion to remand that relies, as here,

on newly available evidence is held to the substantive

requirements of a motion to reopen.     Li Yong Cao v. U.S.

Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).     Thus,

it “shall not be granted unless it appears to the Board that


                                4
evidence sought to be offered is material and was not

available and could not have been discovered or presented at

the former hearing.”     8 C.F.R. § 1003.2(c)(1).   We review

the BIA’s denial of a motion to remand for abuse of

discretion.     See Li Yong Cao, 421 F.3d at 157.

       Riaz argues that, in denying his motion to remand, the

BIA erred by engaging in improper factfinding in determining

that the evidence he submitted concerning his brother-in-

law’s alleged kidnapping did not support his asylum claim.

This argument is unavailing.     Indeed, to adjudicate a motion

to remand, the BIA must assess the materiality of the

evidence the movant submitted to determine whether he or she

“demonstrat[ed] a likelihood that the new evidence presented

would alter the result in the case [on remand].”      Id. at

156.     Here, after considering the evidence, the BIA

reasonably concluded that Riaz had failed to show that its

introduction would result in a different outcome.

Accordingly, the BIA’s denial of his motion was not an abuse

of discretion.

       As a final matter, counsel of record before us appears

to have represented him in the administrative proceedings

below.     Understandably, such counsel do not raise the issue

of their own possible ineffectiveness in the course of those
                                5
proceedings.    As we understand the record, however, the IJ

warned counsel on October 28, 2005 that failure to bring an

application for asylum to the next hearing might result in

denial of the application for failure to prosecute.        The

record suggests that such an application would have at least

been colorable.     Despite having five months to prepare it,

counsel did not bring such a petition to the subsequent

hearing.   The IJ, as noted earlier, nonetheless opted not to

deny the application outright, permitting counsel until the

end of the day to file such an application.      Counsel

specifically declined this invitation to file, choosing

instead to pursue an application for temporary residency

under the LIFE Act.

    But the LIFE Act application appears to have been

invalid on its face because the petitioner did not meet the

minimum residency requirement.      This fact was placed on the

record by counsel for the government during the March 31,

2005 hearing.     The petitioner’s counsel nonetheless made no

effort to have the IJ reconsider his denial of the asylum

application.

    We are not in a position to determine here whether the

petitioner would succeed on a claim for ineffective

assistance of counsel given the extremely stringent
                                6
procedural requirements of In re Lozada, 19 I. & N. Dec.

637, 639 (BIA 1988); see also In re Compean, 25 I. & N. Dec.

1 (A.G. 2009) (Lozada controls until such time, if any, as

the Department of Justice establishes a superseding

framework for review).   But it appears to us, at minimum,

that counsel fell short of his responsibilities to his

client.   We therefore instruct counsel specifically to call

our concerns to the petitioner’s personal attention so that

he is able to assess what further action he might pursue.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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