         08-6030-ag
         Cutanda-Hierrezuelo v. Napolitano

                                                                                                    BIA
                                                                                            A014 393 406
                                 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 18th day of October, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _________________________________________
12
13       JULIO CUTANDA-HIERREZUELO,
14                Petitioner,
15
16                           v.                                              08-6030-ag
17                                                                           NAC
18       JANET NAPOLITANO, SECRETARY, DEPT. OF
19       HOMELAND SECURITY,*
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                      Julio Cutanda-Hierrezuelo, pro se,
24                                            Bronx, New York.
25       FOR RESPONDENT:                      Tony West, Assistant Attorney

                  *
                  Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of the Department
         of Homeland Security Janet Napolitano, is automatically substituted for former Secretary
         Michael Chertoff as respondent in this case.
 1                             General; Richard M. Evans, Assistant
 2                             Director; Sharon M. Clay, Trial
 3                             Attorney, Office of Immigration
 4                             Litigation, United States Department
 5                             of Justice, Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

 8   Board of Immigration Appeals (“BIA”) decision, it is hereby

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Petitioner Julio Cutanda-Hierrezuelo, a native and

12   citizen of the Dominican Republic, seeks review of the July

13   25, 2008 order of the BIA, which denied his motion to

14   reopen.   In re Julio Cutanda-Hierrezuelo, No. A014 393 406

15   (B.I.A. July 25, 2008).    We assume the parties’ familiarity

16   with the underlying facts and procedural history of the

17   case.

18       As an initial matter, contrary to the Respondent’s

19   contention, the petition, which was received by the district

20   court’s pro se office on August 22, 2008, see 2d Cir. Dkt.

21   No. 08-6030-ag at 12/10/2008 Entry (Transfer Order at 1

22   n.1), is timely as to the BIA’s July 25, 2008 order.

23   See 8 U.S.C. § 1252(b)(1).    However, contrary to the

24   Cutanda-Hierrezuelo’s contentions, this July 25, 2008 order

25   is the only order presently before us for review; we have


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 1   already dismissed in part and denied in part his petition

 2   for review of the agency’s August 2004 final order of

 3   removal in this case.   See Hierrezuelo v. Ashcroft, 2d Cir.

 4   Dkt. No. 05-3439-ag at 2/20/2008 Entry (Summary Order).

 5       Because Cutanda-Hierrezuelo has failed to sufficiently

 6   argue in his briefs that the BIA erred in denying his motion

 7   to reopen, we deem any such arguments waived.    See Yueqing

 8   Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

 9   2005).   Moreover, even if we liberally construe Cutanda-

10   Hierrezuelo’s submissions as challenging the July 25, 2008

11   order, see, e.g., Weixel v. Board of Educ., 287 F.3d 145-46

12   (2d Cir. 2002), the BIA did not abuse its discretion in

13   denying Cutanda-Hierrezuelo’s motion to reopen as both

14   untimely and lacking in merit.    See Kaur v. BIA, 413 F.3d

15   232, 233 (2d Cir. 2005) (per curiam); see also 8 C.F.R.

16   § 1003.2(c)(2).

17       Insofar as Cutanda-Hierrezuelo’s reply brief can be

18   liberally construed as arguing that his prior counsel was

19   ineffective, he has waived any such claim by failing to

20   raise it in his opening brief, see Tischmann v. ITT/Sheraton

21   Corp., 145 F.3d 561, 568 n.4 (2d Cir. 1998), and this claim

22   is also unexhausted, as he failed to raise it before the


                                   3
 1   agency, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

 2   104, 107 n.1, 119-22 (2d Cir. 2007), and, additionally,

 3   there is no indication that he has complied with the

 4   requirements of In re Lozada, 19 I.& N. Dec. 637 (BIA 1988).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot.    Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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