10-2218-ag
Islam v. Holder
                                                                                BIA
                                                                        A096 426 163


                   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 16th day of August, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         RICHARD C. WESLEY,
         PETER W. HALL,
              Circuit Judges.
_______________________________________

MOHAMMAD ISLAM
         Petitioner,

                  v.                                               10-2218-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
         Respondent.
______________________________________

FOR PETITIONER:                Heidi J. Meyers, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Terri J. Scadron, Assistant Director;
                               Colin J. Tucker, Trial Attorney,
                               Office of Immigration Litigation,
                               Civil Division, U.S. Department of
                               Justice, 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      Mohammad   Islam,    a   native   and     citizen   of

Bangladesh, seeks review of a May 13, 2010, order of the BIA

denying his motion to reopen.       In re Mohammad Akhterul Islam,

No. A096 426 163 (B.I.A. May 13, 2010).                    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 reopen for

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

(2d Cir. 2006).      As an initial matter, we note that we are

unable to address Islam’s argument that he established his

eligibility   for    cancellation   of   removal      in    his   original

proceedings or that the BIA’s review of those proceedings was

inadequate, as our review is limited to the BIA’s denial of

the motion to reopen and we are “precluded from passing on the

merits of the underlying [removal] proceedings.”                  Paul v.

Gonzales, 444 F.3d 148, 153 (2d Cir. 2006) (citation and

internal quotation marks omitted).




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       Islam’s motion argued that he had been prejudiced by the

ineffective assistance of his former counsel who had, inter

alia, failed to prepare him (Islam) and his wife for the

hearing on his application for cancellation of removal and

prepared inadequate corroboration of his continuous presence

in the United States from 1993 to 2003.                   To demonstrate

ineffective assistance of counsel, an alien must show “that

competent counsel would have acted otherwise, and hat he was

prejudiced by his counsel’s performance.”                Rabiu v. INS, 41

F.3d    879,    882   (2d   Cir.   1994)     (internal   quotation   marks

omitted); see also Cekic v. INS, 435 F.3d 167, 171 (2d Cir.

2006).

       Islam contended that his counsel was ineffective because

he gave Islam only “basic guidelines” regarding what evidence

was needed to establish continuous physical presence, that he

did not specify what documents should be supplied, and did not

correct       allegedly     erroneous   information      supplied    by   an

accountant.       The BIA analyzed each of these allegations and

reasonably concluded that they did not establish ineffective

assistance of counsel.

       In addition, the BIA concluded that Islam had not shown

that     he     was    prejudiced       by    his   counsel’s       alleged


                                    -3-
ineffectiveness.          The BIA did not explain what standard it

used    to    determine    that   Islam   was   not   prejudiced    by   his

counsel’s alleged failures.          In Vartelas v. Holder, 620 F.3d

108, 113-15 (2d Cir. 2010), we noted that the BIA has not

adopted a single standard for determining whether an alien has

shown prejudice. More recently, the BIA issued a precedential

decision stating that in the Ninth Circuit “prejudice exists

when the performance of counsel is so inadequate that there is

a   reasonable      probability     that    but    for   the     attorney’s

negligence, the outcome of the proceedings may have been

different.”       Matter of D-R-, 25 I. & N. Dec. 445, --- (BIA

2011) (citing Maravilla Maravilla v. Ashcroft, 381 F.3d 855,

858 (9th Cir. 2004)).          In Vartelas, we determined that “we

need    not    determine    which   of    the   standards   of    prejudice

applie[d]” because “Vartelas ha[d] failed to show prejudice

under any standard.”         620 F.3d at 115.      That is true in this

case as well.

       For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

any pending motion for a stay of removal in this petition is

DISMISSED as moot.         Any pending request for oral argument in


                                    -4-
this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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