20

- 43 Rvalov v. Garland BIA Christenen
, IJ A 070 136 758 

### 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 APP**  **ENDIX 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** 1 **for the Second Circuit, held a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **A p**  **r i**  **l ,**  **two thousand twenty** 

**- two.**  4 5 **PRESENT:** 6 **RICHARD J. SULLIVAN ,**  7 **EUNICE C. LEE ,**  8 **MYRNA PÉREZ**

**,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ANDREI RVALOV ,**  13 **Petitioner ,**  14 15

**v. 20** 

**- 43**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Thomas E. Moseley, Esq., Newark, 23
N J

. 24 25 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 26 Assistant Attorney General ; 27 Shelley R. Goad , Assistant 282 Director; Kristen A. Giuffreda , 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

Petitioner Andr ei Rvalov , a native of the former U.S.S.R. 10

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

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

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

. In 13

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

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

We assume the parties’ familiarity with the underlying facts 16

and procedural history. 17

We have review ed the IJ’s decision as the final agency 18

determination

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

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

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

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

found

. . . where the [IJ’s] decision pro vides no rational 23

explanation, inexplicably departs from established policies, 243 is devoid of any reasoning, or contains only summary or 1

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

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

v. U .S. Dep’t of Just

. , 265 F.3d 83, 93 (2d Cir. 2001) 4

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

here. 6

Rvalov moved to reopen his removal proceedings, alleging 7

ineffective assistance of counsel and admitting that both he 8

and his estranged wife had testified falsely at the hearing 9

in order for him to satisfy the eligibility requirements for 10

cancellation of r emoval. I neffective assistance of counsel 11

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

performance deprived the noncitizen of a fair hearing and 13

caused prejudice, Iavorski v. INS , 232 F.3d 124, 128

– 29 (2d 14

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

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

determines that the underlying relief sought would not be 17

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

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

relief is discretionary [,]

. . . the BIA may leap ahead

. . . 20

over the two threshold concerns (prima facie case and new 214 evidence/reasonable explanation), and simply determine 1

that

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

discretionar y grant of relief. ”) ; INS v. Rios

- Pineda , 471 3

U.S. 444, 451

– 52 ( 1985) (finding no abuse of discretion where 4

denial of reopening “was grounded in legitimate concerns 5

about the administration of the immigration laws and was 6

determined on the basis of the particular conduct of 7

respondents”)

. 8

The IJ did not abuse his discretion in denying reopening 9

because Rvalov admitted to testifying falsely to obtain an 10

immigration benefit. See Rios

- Pineda , 471 U.S. at 451

– 52. 11

C ontrary to Rvalov’s contention here that he timely retracted 12

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

not retract the testimony until after relief was denied. 14

Moreover, both the form of ca ncellation of removal that Rvalov 15

initially sought and the form of cancellation he ra ised in 16

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

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

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

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

– 62 (2d 20

Cir. 2010) (cancell ation as battered or abuse d spouse of U.S. 215 citizen under § 1229b(b)(2)). The IJ thus has the discretion 1

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

of relief

. See Abudu , 485 U.S. at 105

. 3

For the foregoing reasons, the petition for review is 4

DENIED

. All pending motions and applications are DENIED and 5

stays VACATED. 6

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