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 

New York, on the 19th 4 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, 
2

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 
3

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 
4

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 
5

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, 
6

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