* Circuit Judge Peter W. Hall, originally a member of the panel, 

is currently unavailable. Circuit Judge Jon O. Newman has 

replaced Judge Hall on the panel for this matter. See 2d Cir. 

IOP E(b).

18-1656

Chen v. Barr

BIA

A206 225 040

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 15th day of September, two thousand twenty.

PRESENT:

JON O. NEWMAN,*

SUSAN L. CARNEY,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

SAI MIN CHEN,

Petitioner,

v. No. 18-1656

NAC

WILLIAM P. BARR, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Cora J. Chang, Esq., Flushing, 

NY.
2

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Leslie McKay, Senior 

Litigation Counsel; Lisa M. 

Damiano, Trial Attorney, 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 Sai Min Chen, a native and citizen of the 

People’s Republic of China, seeks review of a May 9, 2018

decision of the BIA denying her motion to reopen her removal 

proceedings. In re Sai Min Chen, No. A 206-225-040 (B.I.A. 

May 9, 2018). We assume the parties’ familiarity with the 

underlying facts and procedural history in this case.

“We review the denial of motions to reopen immigration 

proceedings for abuse of discretion, mindful that motions to 

reopen are disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 

(2d Cir. 2006) (internal quotation marks omitted). “An abuse 

of discretion may be found in those circumstances where the 

[BIA’s] decision provides no rational explanation, 

inexplicably departs from established policies, is devoid of 
3

any reasoning, or contains only summary or conclusory 

statements; that is to say, where the [BIA] has acted in an 

arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t 

of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citation omitted). 

To obtain reopening, a movant must present new, previously 

unavailable evidence that establishes her prima facie

eligibility for the relief sought. See 8 C.F.R. § 

1003.2(c)(1); INS v. Abudu, 485 U.S. 94, 104 (1988). 

The BIA did not abuse its discretion in denying reopening 

because Chen failed to demonstrate current prima facie

eligibility for a provisional unlawful presence waiver, and 

thus, prima facie eligibility for administrative closure to 

allow her to obtain such a provisional waiver. See Matter 

of Avetisyan, 25 I. & N. Dec. 688, 696 (B.I.A. 2012) 

(explaining that administrative closure requires agency to 

evaluate totality of circumstances, including, among other 

factors, the likelihood of success, the length of delay, and 

the speculative nature of the relief).1 See generally 8 C.F.R. 

1 Because the BIA’s decision denying reopening predates Matter 

of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), which held 

that neither immigration judges nor the BIA have general 

authority to administratively close proceedings, we have 

reviewed the decision on the grounds relied on by the BIA and 
4

§ 212.7(e) (providing that U.S. Citizenship and Immigration 

Services (“USCIS”) may grant a “provisional unlawful presence 

waiver” permitting certain aliens who are unlawfully present 

in the United States and are in the process of obtaining a 

visa to apply for a waiver of admissibility without leaving 

the United States). 

First, an alien is ineligible for a provisional unlawful 

presence waiver if she does not currently have a case pending 

with the Department of State based on either an approved 

immigrant visa petition or her selection to participate in 

the diversity visa program. See 8 C.F.R. § 212.7(e)(4)(ii). 

Chen argues that she is eligible to become the beneficiary of 

an approved visa petition, i.e., that she has a pending

petition, not an approved petition. Because her petition is 

not yet approved, she is not yet eligible to apply for a 

provisional waiver. See id. 

Second, an alien who “is subject to an administratively 

final order of removal” is ineligible for a provisional 

unlawful presence waiver unless she “has already filed and 

do not address whether administrative closure remains 

available. 
5

USCIS has already granted, before the alien applies for a 

provisional unlawful presence waiver . . . , an application 

for consent to reapply for admission under section 

212(a)(9)(A)(iii) of the [Immigration and Nationality] Act 

and 8 C.F.R. 212.2(j).” 8 C.F.R. § 212.7(e)(4)(iv). It is 

undisputed that Chen is subject to an administratively final 

order of removal, and she does not challenge the BIA’s 

conclusion that she did not show that she has received consent 

to reapply for admission from USCIS. Instead, Chen raises 

arguments concerning the criteria for obtaining a waiver of 

inadmissibility based on “extreme hardship” to her relatives 

in the United States—i.e., the relief she could apply for 

from the United States if her provisional unlawful presence 

waiver were first granted. See 8 C.F.R. § 212.7(e)(3)–(4) 

(setting forth criteria for eligibility for a provisional 

unlawful presence waiver, which does not include an “extreme 

hardship” element). 

Even if Chen could establish prima facie eligibility for 

relief, however, reopening would not be warranted because she 

could have raised these issues at her hearing. See 8 C.F.R. 

§ 1003.2(c)(1). Chen’s assertion that the IJ failed to 
6

inform her of the possibility of pursuing adjustment of status 

based on her marriage to a U.S. citizen and a provisional 

waiver is unfounded because the record shows that the IJ 

discussed these issues with Chen’s counsel. 

Further, to the extent Chen asserts ineffective 

assistance of counsel as the basis for her motion, she failed 

to comply with any of the procedural requirements for such a 

motion as are set forth in Matter of Lozada, 19 I. & N. Dec. 

637 (B.I.A. 1988). Under Lozada, a movant must submit:

(1) an affidavit setting forth in detail the 

agreement with former counsel concerning what 

action would be taken and what counsel did or did 

not represent in this regard; (2) proof that the 

alien notified former counsel of the allegations of 

ineffective assistance and allowed counsel an 

opportunity to respond; and (3) if a violation of 

ethical or legal responsibilities is claimed, a 

statement as to whether the alien filed a complaint 

with any disciplinary authority regarding counsel's 

conduct and, if a complaint was not filed, an 

explanation for not doing so.

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

internal quotation marks omitted); see also Matter of Lozada, 

19 I. & N. Dec. at 639. Although we have found substantial 

compliance with these requirements where the facts supporting 

the ineffective assistance claim are “clear on the face of 

the record,” Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d 
7

Cir. 2007), that is not the case here. The record instead

reflects that counsel was aware of the possibility that Chen’s 

husband could file a visa petition and Chen could apply for 

a provisional unlawful presence waiver, and there is no 

indication on the record before us that counsel failed to 

inform Chen of these options. 

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court