         09-3434-ag
         Yadgarov v. Holder
                                                                                         BIA
                                                                                 A097 526 418
                               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 31 st day of August,            two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                REENA RAGGI,
10                       Circuit Judges.
11       _________________________________________
12
13       ATKHAMZHAN YADGAROV,
14                Petitioner,
15
16                            v.                                 09-3434-ag
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Alexander J. Segal, Grinberg &
24                                      Segal, P.L.L.C., New York,
25                                      New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Linda S. Wernery, Assistant
29                                      Director; William C. Minick,
30                                      Attorney, Office of Immigration
31                                      Litigation, United States Department
32                                      of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Atkhamzhan Yadgarov, a native of the former

6    Soviet Union and citizen of Kazakhstan, seeks review of the

7    July 23, 2009, order of the BIA denying his motion to

8    reopen.     In re Yadgarov, No. A097 526 418 (B.I.A. July 23,

9    2009).    We review the BIA’s denial of a motion to reopen for

10   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

11   (2d Cir. 2006).     We assume the parties’ familiarity with the

12   underlying facts and procedural history of the case.

13       The BIA did not abuse its discretion in denying

14   Yadgarov’s motion based on its finding that he failed to

15   show that his former counsel’s conduct was prejudicial.       See

16   Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); Esposito v.

17   INS, 987 F.2d 108, 111 (2d Cir.1993) (holding that to

18   prevail on a claim of ineffective assistance of counsel, a

19   petitioner must show that competent counsel would have acted

20   otherwise and that he was prejudiced by his counsel’s

21   conduct).     To show prejudice, Yadgarov contends that his

22   attorney failed to instruct him to get documents from



                                     2
1    Kazakhstan to support his claims of persecution, implying

2    that such documents existed and would have proved helpful.

3    But, he testified that he had asked family members to send

4    him a statement weeks in advance of his removal hearing, and

5    he has failed to show what documents he would have produced

6    had he received different advice from counsel.    Although

7    Yadgarov further contends that his attorney failed to show

8    him a copy of the document purported to be his personal

9    statement, he testified that he wrote the statement himself

10   and gave no other indication during the proceedings before

11   the IJ that the statement was fabricated.    Under these

12   circumstances, it was within the Board’s discretion to

13   conclude that better advice would have made no material

14   difference.

15       Finally, because Yadgarov does not challenge the BIA’s

16   denial insofar as it construed his motion as a motion to

17   reconsider, we do not address that portion of the BIA’s

18   opinion.

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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


                                    3
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
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