         12-2637
         Dong v. Holder
                                                                                        BIA
                                                                               A 078 743 440
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNIS JACOBS,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       SHENG QUI DONG,
14                Petitioner,
15
16                        v.                                    12-2637
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Vlad Kuzmin, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Leslie McKay,
27                                     Assistant Director; Sara J. Bergene,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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 Sheng Qui Dong, a native and citizen of

 6   China, seeks review of a February 9, 2011, decision of the

 7   BIA, denying his motion to remand proceedings to the

 8   immigration judge (“IJ”).    In re Sheng Qui Dong, No. A078

 9   743 440 (B.I.A. Feb. 9, 2011).     We assume the parties’

10   familiarity with the underlying facts and procedural history

11   in this case.

12       We review the BIA’s decision to deny a motion to remand

13   for abuse of discretion.    Li Yong Cao v. Dep’t of Justice,

14   421 F.3d 149, 156 (2d Cir. 2005).     An alien seeking a remand

15   for consideration of new evidence must demonstrate that the

16   evidence to be offered “is material and was not available

17   and could not have been discovered or presented at the

18   former hearing.”   See 8 C.F.R. § 1003.2(c)(1).

19       Dong does not meaningfully challenge the BIA’s

20   dispositive determination that his evidence of ineffective

21   assistance was previously available and could have been

22   presented in his prior appeal to the BIA. See Matter of

23   Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).      While Dong

                                    2
 1   asserts that he pursued his ineffective assistance claim

 2   diligently, he does not argue that his evidence was

 3   unavoidable at the time of his first appeal to the BIA, nor

 4   does he articulate any steps he took to obtain evidence

 5   between the time he first became aware of his prior

 6   counsel’s possible misconduct (in 2004) and when he

 7   submitted documents in support of his claim (in November

 8   2006), after the BIA had already dismissed his first appeal

 9   of this issue for failure to comply with Matter of Lozada.

10   See 8 C.F.R. § 1003.2(c)(1); see also Cekic v. INS, 435 F.3d

11   167, 171 (2d Cir. 2006); Jian Hua Wang v. BIA, 508 F.3d 710,

12   715 (2d Cir. 2007).

13       The agency therefore did not abuse its discretion in

14   declining to remand for further consideration of his claim.

15   Because this finding is dispositive of Dong’s claims, we

16   decline to reach the agency’s alternative bases for

17   rejecting his claim of ineffective assistance of counsel or

18   denying asylum.   See INS v. Bagamasbad, 429 U.S. 24, 25

19   (1976).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition


                                   3
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DISMISSED as moot.    Any pending request for

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




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