     17-3639
     Wu v. Whitaker
                                                                                   BIA
                                                                              Cheng, IJ
                                                                           A200 919 291
                           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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 19th day of December, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            JOSÉ A. CABRANES,
 9            DENNY CHIN,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   CHENG XI WU,
15            Petitioner,
16
17                    v.                                         17-3639
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Zhiyuan Qian, Esq., Law Office of
25                                    David Chien, P.C., New York, NY.
26
27   FOR RESPONDENT:                  Alexander J. Lutz, Trial
28                                    Attorney, Office of Immigration
29                                    Litigation; Chad A. Readler,
30                                    Acting Assistant Attorney General,
31                                    Civil Division; Jeffery R. Leist,
1                                 Senior Litigation Counsel, Office
2                                 of Immigration Litigation; United
3                                 States Department of Justice,
4                                 Washington, DC.
5
6        UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is DENIED.

10       Petitioner Cheng Xi Wu, a native and citizen of the

11   People’s Republic of China, seeks review of an October 13,

12   2017 decision of the BIA affirming a March 6, 2017 decision

13   of an Immigration Judge (“IJ”) denying Wu’s motion to reopen.

14   In re Cheng Xi Wu, No. A 200 919 291 (B.I.A. Oct. 13, 2017),

15   aff’g No. A200 919 291 (Immig. Ct. N.Y. City Mar. 6, 2017).

16   We assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       We have reviewed the IJ’s decision denying reopening as

19   supplemented by the BIA.     See Yan Chen v. Gonzales, 417 F.3d

20   268, 271 (2d Cir. 2005).     We review the agency’s denial of a

21   motion to reopen for abuse of discretion.         Ali v. Gonzales,

22   448 F.3d 515, 517 (2d Cir. 2006).        To obtain reopening, a

23   movant must present new, previously unavailable evidence that

24   establishes   his   prima   facie   eligibility   for   the   relief


                                     2
1    sought.      See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); INS v.

2    Abudu, 485 U.S. 94, 104 (1988).

3         Generally, to prevail on an ineffective assistance claim,

4    an   alien    must   substantially   comply   with   the   procedural

5    requirements set forth in Matter of Lozada, 19 I. & N. Dec.

6    637-39 (B.I.A. 1988).      These include providing an affidavit

7    “detail[ing] the agreement with former counsel,” proof that

8    former counsel has been notified of the allegations, and proof

9    of filing a complaint with a disciplinary authority.             Twum

10   v. INS, 411 F.3d 54, 59 (2d Cir. 2005) (quoting Esposito v.

11   INS, 987 F.2d 108, 110 (2d Cir. 1993)).        “[A]n alien who has

12   failed to comply substantially with the Lozada requirements

13   in h[is] motion to reopen before the BIA forfeits h[is]

14   ineffective assistance of counsel claim in this Court.”         Jian

15   Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.

16   2005).

17        On appeal, Wu has failed to address the dispositive

18   bases for the agency’s denial of his motion. See Yueqing

19   Zhang v. Gonzales, 426 F.3d 540, 541 n.1,545 n.7 (2d Cir.

20   2005) (providing that issues not raised in an opening brief

21   are waived).     Wu does not explain how the evidence that he

22   presented in support of reopening was material and
                                      3
1    unavailable at the time of his prior hearing, nor does he

2    challenge the agency’s finding that he failed to satisfy

3    the procedural requirements for an ineffective assistance

4    of counsel claim. See Jian Yun Zheng, 409 F.3d at 46-47

5    (holding that our merits review of an ineffective

6    assistance claim is contingent upon petitioner’s

7    substantial compliance with the “reasonable requirements”

8    of Lozada).   Consequently, he has not demonstrated that the

9    agency abused its discretion in denying reopening,   Ali,

10   448 F.3d at 517, and we therefore deny his petition for

11   review.

12       Although we need not reach his additional arguments, we

13   write briefly to clarify why they also do not provide an

14   adequate basis for granting the petition.

15       Wu argues that the IJ applied an improper procedural

16   framework in finding that his asylum claim was fraudulent.

17   This argument fails for three reasons.      First, Wu did not

18   raise this issue before the BIA.   See Lin Zhong v. U.S. Dep’t

19   of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (explaining that

20   issue exhaustion is mandatory).    Second, Wu’s attack on the

21   IJ’s order of removal is not properly before us because Wu

22   petitioned for review only of the denial of reopening.      See
                                   4
1    Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d

2    Cir. 2001).       Third, the IJ did not independently determine

3    that     Wu    committed      fraud:       rather,   during       the   agency

4    proceedings, Wu agreed to give up his asylee status and the

5    IJ simply relied on that concession.

6           Wu also argues that the IJ erred by denying his request

7    for an adjournment.           He has not shown, however, that the

8    denial of an adjournment constituted abuse of discretion

9    either    in    itself   or   as    related     to   the   IJ’s    denial   of

10   reopening.       See Morgan v. Gonzales, 445 F.3d 549, 551 (2d

11   Cir. 2006) (discussing IJ’s broad discretion in ruling on a

12   requested continuance).            As noted above, Wu agreed to give

13   up his asylee status, and the record does not establish that

14   he thereafter pursued his adjournment request or that the IJ

15   ever ruled on it.          In any event, we identify no abuse of

16   discretion in the BIA’s finding that Wu failed to demonstrate

17   prejudice from the absence of an adjournment: Wu points to no

18   evidence that he could have obtained or argument that he could

19   have presented had the adjournment been granted.

20          For the foregoing reasons, the petition for review is

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

22   that the Court previously granted in this petition is VACATED,
                                            5
1   and any pending motion for a stay of removal in this petition

2   is DISMISSED as moot.   Any pending request for oral argument

3   in this petition is DENIED in accordance with Federal Rule of

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

5   34.1(b).

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




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