     14-204
     Rosero v. Lynch
                                                                                       BIA
                                                                               A079 125 965
                            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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   1st day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            ROBERT D. SACK,
 9            REENA RAGGI,
10                 Circuit Judges.
11   _____________________________________
12
13   CONCEPCION YAMILETH ROSERO,
14            Petitioner,
15
16                     v.                                            14-204
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Theodore N. Cox, New York, New York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
27                                       Attorney General; Paul Fiorino,
28                                       Senior Litigation Counsel; Erik R.
29                                       Quick, Trial Attorney, Office of
30                                       Immigration Litigation, U.S.
31                                       Department of Justice, Washington,
32                                       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 is

4    DENIED.

5        Petitioner       Concepcion   Yamileth   Rosero,   a   native   and

6    citizen of Colombia, seeks review of a December 12, 2013,

7    decision of the BIA denying her untimely motion to reopen.          In

8    re Concepcion Yamileth Rosero, No. A079 125 965 (B.I.A. Dec.

9    12, 2013).    We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11       We review the BIA’s denial of a motion to reopen for abuse

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

13   2006) (per curiam).      An alien seeking to reopen proceedings is

14   required to file a motion to reopen no later than 90 days after

15   the date on which the final administrative decision was

16   rendered.        8     U.S.C.     § 1229a(c)(7)(C)(1);     8   C.F.R.

17   § 1003.2(c)(2).      There is no dispute that Rosero’s motion to

18   reopen, filed in October 2013, was untimely because her order

19   of removal became final in 2011.         Rosero contends, however,

20   that ineffective assistance of counsel excuses her late filing.

21       This Court has held that, to prevail on a claim of

22   ineffective assistance of counsel, an alien must first comply

                                         2
1    with certain procedures set forth by the BIA in Matter of Lozada,

2    19 I. & N. Dec. 637 (B.I.A. 1988).    Here, Rosero does not dispute

3    that she has not complied with these procedures; rather, she

4    argues that she need not do so under the circumstances of her

5    case.

6         It is true, as Rosero contends, both that “slavish

7    adherence” to Lozada’s requirements is not necessary in certain

8    circumstances, and that, where facts supporting a “claim of

9    ineffective assistance are clear on the face of the record,”

10   noncompliance with those requirements may be excused.         Yi Long

11   Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007).      However,

12   contrary to Rosero’s assertions, this case is not one where the

13   facts are so clear.

14        The   facts   here   are   distinct   from   the   circumstances

15   presented in Yi Long Yang, in that Rosero’s only intimation that

16   her former counsel was ineffective was that her husband and son

17   were not called as witnesses; she does not contend that, as in

18   Yi Long Yang, her former counsel was disbarred, or that the

19   agency explicitly assumed her former counsel’s competence.

20   Id. at 142.   Longstanding precedent holds that a decision not

21   to call a particular witness or witnesses does not constitute



                                       3
1    ineffective assistance of counsel.          See, e.g., United States

2    v. Schmidt, 105 F.3d 82 (2d Cir. 1997).

3        Because the BIA did not abuse its discretion in denying the

4    motion to reopen on the basis of Rosero’s failure to comply with

5    Lozada’s    requirements,   we    decline    to   consider   Rosero’s

6    challenge to the BIA’s alternative conclusion that she had not

7    demonstrated due diligence and thus equitable tolling of the

8    filing deadline was not warranted.      See INS v. Bagamasbad, 429

9    U.S. 24, 25 (1976) (per curiam).

10       For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.    Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                    FOR THE COURT:
19                                    Catherine O=Hagan Wolfe, Clerk




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