         09-2520-ag (L); 09-2521-ag (Con)
         Tazu v. Holder
                                                                                       BIA
                                                                               A073 164 337
                                                                               A073 164 338
                                                                               A073 164 339
                                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 19 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                    Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                    Circuit Judges.
12       _______________________________________
13
14       SYED TAZU, SHAHIDA RAHMAN,
15       SYED SHADMAN SARAR,
16                Petitioners,
17
18                           v.                                 09-2520-ag (L);
19                                                              09-2521-ag (Con)
20                                                              NAC
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL, DEPARTMENT OF
23       HOMELAND SECURITY,
24                Respondents.
25       ______________________________________
26
27       FOR PETITIONERS:                    Amy N. Gell, Gell & Gell, New York,
28                                           New York.
29
30       FOR RESPONDENTS:                    Tony West, Assistant Attorney
31                                           General, Civil Division; Cindy S.
32                                           Ferrier, Senior Litigation Counsel;
33                                           M. Jocelyn Lopez Wright, Senior
1                                 Litigation Counsel; Keith I.
2                                 McManus, Senior Litigation Counsel,
3                                 Office of Immigration Litigation,
4                                 Civil Division; Kristin K. Edison,
5                                 Attorney, Civil Division, U.S.
6                                 Department of Justice, Washington,
7                                 D.C.
8
9         UPON DUE CONSIDERATION of these petitions for review of

10   two Board of Immigration Appeals (“BIA”) decisions, it is

11   hereby ORDERED, ADJUDGED, AND DECREED that these petitions

12   for review are sua sponte CONSOLIDATED.        The consolidated

13   petitions for review are DENIED.

14        The Petitioners, Syed Tazu, his wife, Shahida Rahman,

15   and their son, Syed Shadman Sarar, natives and citizens of

16   Bangladesh, seek review of: (1) a May 13, 2009, order of the

17   BIA, denying Tazu and Rahman’s motion to reopen, In re Tazu,

18   Nos. A 073 164 338/339 (B.I.A. May 13, 2009); and (2) a May

19   13, 2009, order of the BIA, denying Sarar’s motion to

20   reopen, In re Sarar, No. A 073 164 337 (B.I.A. May 13,

21   2009). 1       We assume the parties’ familiarity with the

22   underlying facts and procedural history of the cases.



                1
              Because these petitions involve common issues of
       law and fact, we sua sponte consolidate the cases for
       disposition and designate Docket Number 09-2520-ag as the
       lead petition. The Clerk’s Office is directed to amend
       the official caption in this case to conform with this
       order.

                                        2
1         We review the BIA’s denial of a motion to reopen for

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

3    Cir. 2006).     When the BIA considers relevant evidence of

4    country conditions in evaluating a motion to reopen, we

5    review the BIA’s factual findings under the substantial

6    evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

7    138, 169 (2d Cir. 2008).

8         In general, an alien may only file one motion to reopen

9    and must do so within 90 days of the final administrative

10   decision.     8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

11   It is indisputable that the Petitioners’ motions to reopen

12   were untimely.     However, there is no time limitation where

13   the alien establishes materially “changed circumstances

14   arising in the country of nationality.”     8 C.F.R.

15   § 1003.2(c)(3)(ii).     The filing deadline may also be

16   equitably tolled based on a claim of ineffective assistance

17   of counsel.     See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

18   2006).

19   I.   Changed Country Conditions

20        In their motions, the Petitioners argued that country

21   conditions had changed in that anti-American sentiment and

22   religious extremism were on the rise in Bangladesh.

23   Contrary to the Petitioners’ argument here, the record does



                                     3
1    not compellingly suggest that the BIA ignored any evidence

2    material to their claim.   Indeed, we have rejected the

3    notion that the agency must “expressly parse or refute on

4    the record each individual argument or piece of evidence

5    offered by the petitioner.”     See Jian Hui Shao, 546 F.3d at

6    169 (quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d

7    Cir. 2007)) (internal quotation marks omitted).          Regardless,

8    the evidence relied on by the Petitioners does not discuss,

9    much less establish, whether an increase in anti-American

10   sentiment and Islamic extremism has resulted in the

11   mistreatment of similarly situated “westernized”

12   Bangladeshis who return home.       See id. at 160-61.     Moreover,

13   although the BIA noted that Bangladesh suffers from

14   “generalized violence and terror attacks,” it properly found

15   such evidence insufficient to establish the Petitioners’

16   prima facie eligibility for asylum.       See Melgar de Torres v.

17   Reno, 191 F.3d 307, 314 & n.3 (2d Cir. 1999) (noting that

18   generally high levels of crime or violence do not on their

19   own establish evidence of persecution).

20   II.   Ineffective Assistance of Counsel

21         Petitioners Tazu and Rahman argued in their motion that

22   their former counsel provided ineffective assistance in

23   preparing their motion to reopen.       In rejecting that claim,


                                     4
1    the BIA found that Tazu and Rahman’s claim “was not

2    supported by any evidence that might have made a potential

3    showing of ineffective [] assistance or defective

4    performance of counsel.”     The BIA’s seminal decision in

5    Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),

6    requires an individual moving to reopen his removal

7    proceedings based upon a claim of ineffective assistance of

8    counsel to: (1) support his motion with an affidavit

9    attesting to the relevant facts; (2) inform his former

10   counsel of the allegations and allow counsel the opportunity

11   to respond; and (3) disclose whether a complaint has been

12   filed with the appropriate disciplinary authorities

13   regarding such representation, and if not, to explain why

14   not.    Id. at 639 (BIA 1988). 2

15          We find unavailing the Petitioners’ argument that they

16   have “substantial[ly] compli[ed]” with the Lozada

17   requirements.    Tazu Br. at 19.       Although we have rejected

18   any requirement of “slavish adherence” to Lozada, Yi Long

19   Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007), we have

20   nonetheless held that an “alien who has failed to comply


              2
             To the extent the Petitioners argue their case
       should be remanded because the BIA erroneously referred
       to the now vacated Matter of Compean, 24 I. & N. Dec. 710
       (A.G. 2009), the record indicates that the BIA correctly
       applied the Lozada framework.

                                        5
1    substantially with the Lozada requirements in her motion to

2    reopen before the BIA forfeits her ineffective assistance of

3    counsel claim in this Court,”       Jian Yun Zheng v. U.S. Dep’t

4    of Justice, 409 F.3d 43, 47 (2d Cir. 2005).       Here, the

5    Petitioners concede that they failed either to inform their

6    attorney of the allegations against him or file a bar

7    complaint with the appropriate authorities.       Although before

8    this Court the Petitioners proffer an explanation for why

9    they failed to file a complaint against their former

10   counsel, they did not do so before the BIA.       That argument

11   is therefore unexhausted.     See Lin Zhong v. U.S. Dep’t of

12   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).        Accordingly,

13   the BIA did not abuse its discretion in denying their motion

14   to reopen.     See Jian Yun Zheng, 409 F.3d at 47.

15       For the foregoing reasons, the petitions for review are

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

17   removal that the Court previously granted is VACATED, and

18   any pending motion for a stay of removal is DISMISSED as

19   moot.     Any pending request for oral argument is DENIED in

20   accordance with Federal Rule of Appellate Procedure 34(a)(2)

21   and Second Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25
26


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