    10-252-ag
    Liu v. Holder
                                                                                  BIA
                                                                          A093 397 317
                     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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 15th day of March, two thousand eleven.

    PRESENT:
             ROGER J. MINER,
             ROBERT A. KATZMANN,
             PETER W. HALL,
                  Circuit Judges.
    ______________________________________

    SHAN XI LIU,
             Petitioner,
                                                           10-252-ag
                    v.                                     NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________
    FOR PETITIONER:               Tina Howe, New York, N.Y.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Jennifer Paisner Williams,
                                  Senior Litigation Counsel; Ali
                                  Manuchehry, Trial Attorney, United
                                  States Department of Justice, Office
                                  of Immigration Litigation, Civil
                                  Division, Washington, D.C.
    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 DENIED.

    Petitioner, Shan Xi Liu, a native and citizen of the

People’s Republic of China, seeks review of a December 28,

2009 decision of the BIA denying his motion to reopen his

removal proceedings.   In re Shan Xi Liu, No. A093 397 317

(B.I.A. Dec. 28, 2009).   We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

    We review for abuse of discretion the BIA’s denial of a

motion to reopen and reconsider.   Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006)(per curiam).   An individual moving

to reopen his removal proceedings based upon a claim of

ineffective assistance of counsel must: (1) support the

motion with an affidavit attesting to the relevant facts;

(2) inform his former counsel of the allegations and allow

counsel the opportunity to respond; and (3) disclose whether

a complaint has been filed with the appropriate disciplinary

authorities regarding such representation, and if one has

not been filed, explain why.   Matter of Lozada, 19 I. & N.

Dec. 637, 639 (B.I.A. 1988).   “We have not required a

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slavish adherence” to the Lozada requirements, “holding only

that substantial compliance is necessary.”       Yi Long Yang v.

Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007).      Nonetheless,

we have held that “an alien who has failed to comply

substantially with the Lozada requirements in her motion to

reopen before the BIA forfeits her ineffective assistance of

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

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

    On appeal, Liu asserts that the BIA failed to consider

the evidence he submitted of his compliance with Lozada.

This evidence consists of (1) an “Evidence List” indicating

the inclusion of a “Copy of Complaint Letter” from Liu

against prior counsel to a disciplinary committee and to

prior counsel; (2) a cover letter, dated May 10, 2009, which

is addressed to the disciplinary committee of the Appellate

Division of the Supreme Court of the State of New York,

First Judicial Department, includes a “cc:” notation listing

prior counsel’s name and address, and references an enclosed

“complaint letter” regarding prior counsel; and (3) a three-

page affidavit from Liu, sworn on May 14, 2009, detailing

his allegations of ineffective assistance. The first page of

the copy of Liu’s affidavit appearing in the record bears

two twenty-digit numbers.   Liu provided no explanation of

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the significance of these numbers below, but on appeal,

asserts that they reflect United States Postal Service

tracking numbers, which in turn provide proof that these

materials were mailed to prior counsel and to the

disciplinary committee on May 18, 2009, and respectively

received by these parties on May 19 and May 26, 2009.     Pet’r

Br. at 14.

    In its decision denying the motion to reopen, the BIA

stated that Liu had not offered a copy of his alleged

“complaint letter” for the agency’s consideration.    It is

unclear to us whether the agency understood and considered

Liu’s assertion, which he has made more clearly in his

appellate brief, that the “Complaint Letter” referred to in

his exhibit list and cover letter is in fact the three-page

affidavit he submitted to the BIA along with his motion.      We

are therefore also uncertain whether the agency, in

concluding that Liu failed “to provide evidence to establish

if and when a complaint letter was properly filed with the

parties,” implicitly determined that a cover letter listing

the addresses of the disciplinary committee and prior

counsel was insufficient proof that the complaint was sent

to these parties.

    Despite these ambiguities in the BIA’s decision, we

                             4
need not remand for clarification in the circumstances of

this case, as “we can state with confidence that the same

decision would be made on remand.”       Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006).       This is

because the record makes clear that Liu failed to comply

with Lozada’s notice requirement insofar as Liu did not

inform prior counsel of his allegations and allow counsel

the opportunity to respond “before allegations of

ineffective assistance of former counsel are presented to

the Board.”   Lozada, 19 I & N Dec. at 639 (emphasis added);

see also id. (“Any subsequent response from counsel, or

report of counsel’s failure or refusal to respond, should be

submitted with the motion.”).       Liu’s motion to reopen was

filed with the BIA on May 20, 2009, only six days after the

date that his affidavit was sworn.       According to Liu’s

explanation of the tracking numbers affixed to the

affidavit, this affidavit was not received by prior counsel

until one day before the motion to reopen was filed with the

BIA.   Therefore, it is apparent from the record that Liu has

failed to comply substantially with Lozada.       See, e.g.,

Asaba v. Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004) (holding

that a period of three days between the mailing of grievance

to counsel and the filing of the motion to reopen “does not

                                5
provide [counsel] an ‘adequate opportunity to respond’ to

the allegations”).

    We have considered Liu’s remaining arguments and find

them to be without merit.   For the foregoing reasons, the

petition for review is DENIED.    As we have completed our

review, the pending motion for a stay of removal in this

petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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