20-43

Rvalov v. Garland

BIA

Christenen, IJ

A070 136 758

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 

New York, on the 20th 4 day of April, two thousand twenty-two.

5

6 PRESENT:

7 RICHARD J. SULLIVAN,

8 EUNICE C. LEE,

9 MYRNA PÉREZ,

10 Circuit Judges.

11 _____________________________________

12

13 ANDREI RVALOV,

14 Petitioner,

15

16 v. 20-43

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Thomas E. Moseley, Esq., Newark, 

24 NJ.

25

26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

27 Assistant Attorney General;

28 Shelley R. Goad, Assistant 
2

1 Director; Kristen A. Giuffreda, 

2 Trial Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

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 Andrei Rvalov, a native of the former U.S.S.R. 

11 and citizen of Russia, seeks review of a December 13, 2019

12 decision of the BIA affirming a June 26, 2018 decision of an 

13 Immigration Judge (“IJ”) denying his motion to reopen. In 

14 re Andrei Rvalov, No. A 070 136 758 (B.I.A. Dec. 13, 2019), 

15 aff’g No. A 070 136 758 (Immigr. Ct. N.Y. City June 26, 2018). 

16 We assume the parties’ familiarity with the underlying facts 

17 and procedural history.

18 We have reviewed the IJ’s decision as the final agency 

19 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 

20 (2d Cir. 2008). We review a denial of a motion to reopen for 

21 abuse of discretion. See Debeatham v. Holder, 602 F.3d 481, 

22 484 (2d Cir. 2010). “An abuse of discretion may be 

23 found . . . where the [IJ’s] decision provides no rational 

24 explanation, inexplicably departs from established policies, 
3

1 is devoid of any reasoning, or contains only summary or 

2 conclusory statements; that is to say, where [the IJ] has 

3 acted in an arbitrary or capricious manner.” Ke Zhen Zhao 

4 v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 2001) 

5 (internal citations omitted). We find no abuse of discretion 

6 here.

7 Rvalov moved to reopen his removal proceedings, alleging 

8 ineffective assistance of counsel and admitting that both he 

9 and his estranged wife had testified falsely at the hearing 

10 in order for him to satisfy the eligibility requirements for 

11 cancellation of removal. Ineffective assistance of counsel 

12 may be grounds for reopening upon a showing that counsel’s 

13 performance deprived the noncitizen of a fair hearing and 

14 caused prejudice, Iavorski v. INS, 232 F.3d 124, 128–29 (2d

15 Cir. 2000), but an IJ has the discretion to deny reopening

16 based on the noncitizen’s past conduct or where the IJ

17 determines that the underlying relief sought would not be

18 merited as a matter of discretion, see INS v. Abudu, 485 U.S. 

19 94, 105 (1988) (“[I]n cases in which the ultimate grant of 

20 relief is discretionary[,] . . . the BIA may leap ahead . . .

21 over the two threshold concerns (prima facie case and new 
4

1 evidence/reasonable explanation), and simply determine 

2 that . . . the movant would not be entitled to the 

3 discretionary grant of relief.”); INS v. Rios-Pineda, 471 

4 U.S. 444, 451–52 (1985) (finding no abuse of discretion where 

5 denial of reopening “was grounded in legitimate concerns 

6 about the administration of the immigration laws and was 

7 determined on the basis of the particular conduct of 

8 respondents”).

9 The IJ did not abuse his discretion in denying reopening 

10 because Rvalov admitted to testifying falsely to obtain an 

11 immigration benefit. See Rios-Pineda, 471 U.S. at 451–52. 

12 Contrary to Rvalov’s contention here that he timely retracted 

13 his false testimony, the IJ properly found that Rvalov did 

14 not retract the testimony until after relief was denied. 

15 Moreover, both the form of cancellation of removal that Rvalov 

16 initially sought and the form of cancellation he raised in 

17 his motion to reopen are discretionary forms of relief. See 

18 Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) 

19 (cancellation for nonpermanent residents under 8 U.S.C. 

20 § 1229b(b)(1)); Rosario v. Holder, 627 F.3d 58, 60–62 (2d 

21 Cir. 2010) (cancellation as battered or abused spouse of U.S. 
5

1 citizen under § 1229b(b)(2)). The IJ thus has the discretion 

2 to deny reopening even if Rvalov were eligible for those forms 

3 of relief. See Abudu, 485 U.S. at 105.

4 For the foregoing reasons, the petition for review is 

5 DENIED. All pending motions and applications are DENIED and 

6 stays VACATED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe,

9 Clerk of Court