         09-3489-ag
         Fang v. Holder
                                                                                        BIA
                                                                               A 098 413 670
                           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 16 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                        Circuit Judges.
11       ______________________________________
12
13       ZE FEI FANG,
14                Petitioner,
15                                                              09-3489-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Yu Zhang, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; Michelle
27                                     Gorden Latour, Assistant Director;
28                                     Timothy G. Hayes, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     Civil Division, United States
31                                     Department of Justice, Washington,
32                                     D.C.
33
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, Ze Fei Fang, a native and citizen of the

6    People’s Republic of China, seeks review of a July 20, 2009

7    order of the BIA denying his motion to reopen and

8    reconsider.   In re Ze Fei Fang, No. A 098 413 670 (B.I.A.

9    July 20, 2009).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       As a preliminary matter, we are without jurisdiction to

12   consider Fang’s challenge to the BIA’s October 2007 decision

13   denying his application for asylum and withholding of

14   removal because he failed to file a timely petition for

15   review of that decision.     See 8 U.S.C. § 1252(b)(1); see

16   also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-

17   90 (2d Cir. 2001).     Therefore, the only issue properly

18   before us is whether the BIA abused its discretion in

19   denying Fang’s motion to reopen based on the alleged

20   ineffective assistance of his former attorney.

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

22   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d



                                     2
1    Cir. 2006).   Under Matter of Lozada, 19 I. & N. Dec. 637

2    (B.I.A. 1988), an alien seeking to raise a claim for

3    ineffective assistance of counsel must file a motion with

4    the agency, including:

 5       (1) an affidavit setting forth in detail the
 6       agreement with former counsel concerning what
 7       action would be taken and what counsel did or did
 8       not represent in this regard; (2) proof that the
 9       alien notified former counsel of the allegations
10       of ineffective assistance and allowed counsel an
11       opportunity to respond; and (3) if a violation of
12       ethical or legal responsibilities is claimed, a
13       statement as to whether the alien filed a
14       complaint with any disciplinary authority
15       regarding counsel’s conduct and, if a complaint
16       was not filed, an explanation for not doing so.
17
18   Twum v. I.N.S., 411 F.3d 54, 59 (2d Cir. 2005); Esposito v.

19   I.N.S., 987 F.2d 108, 110-11 (2d Cir. 1993) (citing Lozada,

20   19 I. & N. Dec. at 639).   Here, the BIA found that Fang

21   failed to comply with Lozada’s “complaint requirements.”

22   Specifically, the BIA stated that Fang failed to file a

23   disciplinary complaint against his former attorney and

24   failed to provide an explanation for such failure.     Fang

25   does not dispute this finding but instead argues that it

26   should not be fatal to his claim because he exercised due

27   diligence, informed his attorney of the issue, and gave him

28   an opportunity to rectify the situation.   However, we have

29   held that an alien’s failure to comply with the Lozada


                                   3
1    requirements constitutes forfeiture of the ineffective

2    assistance claim, and such a failure is thus a proper ground

3    on which the BIA may deny a motion to reopen.   See Jian Yun

4    Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.

5    2005); cf. Piranej v. Mukasey, 516 F.3d 137, 142-45 (2d Cir.

6    2008) (holding that evidence of a general retainer agreement

7    may be sufficient to satisfy the first Lozada requirement).

8    As to Fang’s contention that he exercised due diligence, the

9    BIA noted that Fang failed to establish the date that he

10   became aware of any alleged ineffective assistance of

11   counsel, and, thus, that Fang is unable to demonstrate

12   whether he exercised due diligence in pursuing his motion to

13   reopen.   See Jian Hua Wang v. B.I.A., 508 F.3d 710, 715 (2d

14   Cir. 2007) (rejecting petitioner’s claim of due diligence

15   where he failed to “establish[] in the written record . . .

16   what measures he took to reopen his case”).

17       In light of the BIA’s findings that Fang failed to

18   comply with Lozada and to demonstrate the exercise of due

19   diligence, the BIA’s decision denying his motion to reopen

20   was not “arbitrary or capricious.”   Ke Zhen Zhao, 265 F.3d

21   at 93.

22       For the foregoing reasons, the petition for review is



                                   4
1    DENIED.   As we have completed our review, any stay of

2    removal that the Court previously granted in this petition

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

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

5    oral argument in this petition is DENIED in accordance with

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

 7   Circuit Local Rule 34.1(b).
 8
 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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