    17-2379
    Hasan v. Barr
                                                                                   BIA
                                                                           A031 209 522

                         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.


          At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
    Square, in the City of New York, on the 29th day of April, two thousand
    twenty.

    PRESENT:
               RALPH K. WINTER,
               RICHARD C. WESLEY,
               RICHARD J. SULLIVAN,
                     Circuit Judges.
    _____________________________________

    KAZI ABUL HASAN,
             Petitioner,

                    v.                                           17-2379



    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
               Respondent.
    _____________________________________
FOR PETITIONER:                     PAUL B. GROTAS, New York, NY.

FOR RESPONDENT:                     AARON D. NELSON, Trial Attorney (Chad A.
                                    Readler, Acting Assistant Attorney General;
                                    Terri J. Scadron, Assistant Director, on the
                                    brief), Office of Immigration Litigation, United
                                    States Department of Justice, Washington, DC.
      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 Kazi Abul Hasan, a native and citizen of Bangladesh, seeks review

of a July 25, 2017 decision of the BIA denying his motion to (1) reconsider dismissal

of his appeal of the Immigration Judge’s final order of removal, and (2) reopen his

removal proceedings. In re Kazi Abul Hasan, No. A 031 209 522 (BIA July 25, 2017).

We assume the parties’ familiarity with the underlying facts and procedural

history in this case.

      As an initial matter, because Hasan has timely petitioned for review of the

denial of a motion to reconsider and reopen, but not from the underlying decision

for which reconsideration was sought, we may review only the denial of his

motion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001).

Our jurisdiction to review a final order of removal, including an order denying a



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motion to reconsider and reopen, against an alien such as Hasan who is removable

for a controlled substance offense is limited to constitutional claims and questions

of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D); Santos-Salazar v. U.S. Dep’t of Justice, 400

F.3d 99, 103 (2d Cir. 2005) (providing that criminal jurisdictional bars apply

equally to denials of motions to reconsider); Durant v. U.S. INS, 393 F.3d 113, 115

(2d Cir. 2004) (same for motions to reopen). We review constitutional claims and

questions of law de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007). For

jurisdiction to attach, however, such claims must be colorable. Barco-Sandoval v.

Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008).

Motion to Reconsider

      Hasan has not raised a colorable question of law or constitutional claim

regarding the BIA’s denial of reconsideration. “A motion for reconsideration is a

request that the [BIA] reexamine its decision in light of additional legal arguments,

a change of law, or perhaps an argument or aspect of the case which was

overlooked.” Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (internal

quotation marks and citation omitted); see also 8 U.S.C. § 1229a(c)(6)(C) (“The

motion shall specify the errors of law or fact in the previous order and shall be

supported by pertinent authority.”); 8 C.F.R. § 1003.2(b)(1) (same).          The BIA




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determined that Hasan’s motion to reconsider did not identify any issue that was

not considered in the BIA’s January 2017 decision or any error of fact or law.

Hasan has not raised a colorable question of law or constitutional claim

challenging this BIA finding. See Barco-Sandoval, 516 F.3d at 40–41. Accordingly,

we lack jurisdiction to review the denial of reconsideration.          See 8 U.S.C.

§§ 1252(a)(2)(C), (D); Barco-Sandoval, 516 F.3d at 40–41.

Motion to Reopen

      “[A] motion to reopen shall state the new facts that will be proven at a

hearing to be held if the motion is granted, and shall be supported by affidavits or

other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). “A

motion to reopen proceedings shall not be granted unless . . . that evidence sought

to be offered is material and was not available and could not have been discovered

or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu,

485 U.S. 94, 104 (1988) (finding that BIA may deny a motion to reopen if “the

movant has not introduced previously unavailable, material evidence”).

Ineffective assistance is a basis for reopening. Iavorski v. U.S. INS, 232 F.3d 124,

129 (2d Cir. 2000) (“[T]he vehicle commonly used to redress claims of ineffective

assistance of counsel in deportation proceedings has been an administrative




                                          4
motion to reopen proceedings.”).        To obtain reopening based on ineffective

assistance of counsel, a movant must comply with the procedural requirements set

out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998), and must show both that

counsel’s actions were unreasonable and that those actions caused prejudice. See

Debeatham v. Holder, 602 F.3d 481, 484–85 (2d Cir. 2010); Rashid v. Mukasey, 533 F.3d

127, 131 (2d Cir. 2008).

      Hasan has raised a colorable question of law sufficient to invoke our

jurisdiction: whether the BIA’s decision is without “rational explanation” and

whether it overlooked evidence that he could not have previously submitted his

waiver application because of ineffective assistance. The agency may commit

legal error when its discretionary decision “was made without rational

justification,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006),

and fact-finding may be flawed by an error of law when “facts important to [the

discretionary] determination . . . have been totally overlooked and others have

been seriously mischaracterized,” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).

      Nonetheless, we find that the BIA did not abuse its discretion in denying

Hasan’s motion to reopen. On appeal to the BIA, Hasan, then represented by his

son, moved to remand the case to the Immigration Judge on the basis that his




                                           5
former counsel was ineffective. The BIA denied that motion, finding that Hasan

failed to comply with Lozada and offered no evidence that he was prejudiced by

his former counsel’s actions. In his motion to reopen, Hasan again argued that

his former counsel was ineffective, although this time he submitted evidence of

what can arguably be considered Lozada compliance along with previously-

existing evidence supporting his eligibility for relief. In denying this motion, the

BIA noted that Hasan did not dispute that he had known he needed to file the

appropriate application form and supporting evidence since approximately March

2012, yet pointed only to his “son’s claimed lack of experience in immigration

matters” to explain his failure to do so at any point prior, including in support of

his motion to remand. App’x 3. Notably, Hasan does not argue that his son

provided ineffective assistance before the BIA. Thus, we find that the BIA did not

act unreasonably in concluding that, on these facts, Hasan was not entitled to a

second bite at the apple. See Jin Ming Liu, 439 F.3d at 111 (“The BIA does not

abuse its discretion by denying a motion to reconsider where the motion repeats

arguments that the BIA has previously rejected.”); cf. Jian Yun Zheng v. U.S. Dep't

of Justice, 409 F.3d 43, 47 (2d Cir. 2005) (“[A]n alien who has failed to comply

substantially with the Lozada requirements in her motion to reopen before the BIA




                                         6
forfeits her ineffective assistance of counsel claim in this Court.”). Accordingly,

the BIA did not abuse its discretion in denying Hasan’s motion to reopen.

      For the foregoing reasons, the petition for review is DENIED, and Hasan’s

motion for a stay of removal in this petition is DENIED as moot.

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe,
                                      Clerk of Court




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