    17-3416
    Hossain v. Barr
                                                                                   BIA
                                                                               Segal, IJ
                                                                           A200 944 682
                           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
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO 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 Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 30th day of January, two thousand twenty.

    PRESENT:
             REENA RAGGI,
             DEBRA ANN LIVINGSTON,
             WILLIAM J. NARDINI,
                  Circuit Judges.
    _____________________________________

    ISMAIL HOSSAIN,
             Petitioner,

                      v.                                         17-3416

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Joshua Bardavid, Bardavid Law,
                                      New York, NY; Jan Potemkin, Esq.,
                                      New York, NY.

    FOR RESPONDENT:                   Christopher Bates, Senior
                                      Litigation Counsel (Joseph H.
                                      Hunt, Assistant Attorney General;
                                      Kohsei Ugumori, Senior Litigation
                                      Counsel; Jesse Lloyd Busen, Trial
                                      Attorney, Office of Immigration
                             Litigation, on the brief), 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 GRANTED, and the case is REMANDED in part to the BIA for

consideration consistent with this order.

    Petitioner   Ismail    Hossain,      a    native   and   citizen   of

Bangladesh, seeks review of a BIA decision affirming an

Immigration   Judge’s     (“IJ”)       decision   denying     Hossain’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”), as well as his

motion to remand.   In re Ismail Hossain, No. A200 944 682

(B.I.A. Sept. 29, 2017), aff’g No. A200 944 682 (Immig. Ct.

N.Y. City Aug. 28, 2013).    We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

    We review the BIA’s denial of a motion to remand for

abuse of discretion.    Li Yong Cao v. U.S. Dep’t of Justice,

421 F.3d 149, 157 (2d Cir. 2005).            “A motion to remand that

relies on newly available evidence is held to the substantive

requirements of a motion to reopen.”           Id. at 156.     A movant

seeking remand for consideration of new evidence must present


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“material,     previously    unavailable    evidence.”          Id.;   see

8 C.F.R. § 1003.2(c)(1).

      In his motion to remand, Hossain argued, inter alia, that

his prior counsel’s ineffective assistance was “a factor and

issue” infecting “all matters regarding [his] case.” A.R. 16.

In order to prevail on a claim of ineffective assistance of

counsel, a noncitizen must show “that competent counsel would

have acted otherwise, . . . and that he was prejudiced by his

counsel’s performance.”         Rabiu v. INS, 41 F.3d 879, 882 (2d

Cir. 1994) (internal quotation marks omitted).                  Hossain’s

motion explained that the BIA had already reopened Hossain’s

proceedings    once     after   finding   counsel      ineffective     for

failing   to    file    an   appellate    brief   and    that     counsel

subsequently    was     disbarred   in    New   York    for   fraudulent

litigation.     Hossain then argued that his counsel was also

careless in compiling his I-589 statement and reviewing it

only in a brief and perfunctory manner that resulted in the

omission of important details. Hossain claimed that this

carelessness led to the IJ’s mistaken perception that Hossain

had    provided        inconsistent—and     therefore         incredible—

statements in his I-589 and his individual hearing.




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     In reviewing Hossain’s motion, the BIA did not address

his ineffective assistance claim. While expressing no view as

to the merits of this claim, we conclude that by failing to

address it, the BIA abused its discretion.                 See Ke Zhen Zhao

v. U.S. Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001)

(finding an abuse of discretion where the BIA failed to

“explain [its] decision adequately”).

     We   do    not   find,      however,     that   the   BIA    abused    its

discretion in declining to remand for the IJ to reassess

Hossain’s competence at his hearing in light of medical issues

he   experienced      a   year    after     that   hearing.       The    record

supports the BIA’s determination that the hearing transcript

does not suggest any competency problem during the underlying

removal proceedings; nor do we discern any error in the BIA’s

conclusion that Hossain’s appeal had not drawn into question

whether he had “a rational and factual understanding of the

nature    and   object    of     the   proceedings . . .         and    ha[d]   a

reasonable opportunity to examine and                 present evidence.”

Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 2011); see Li

Yong Cao, 421 F.3d at 157.                 Accordingly, the BIA did not

abuse its discretion in determining that remand was not

required on this ground.


                                       4
    For the foregoing reasons, the petition for review is

GRANTED, and the case is REMANDED in part to the BIA for

consideration   consistent   with   this   order.   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 as moot.

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




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