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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 19 th**  **day of December, two thousand** 4 **eighteen.** 5 6 **PRESENT:** 7 **JOSÉ A. CABRANES,** 8 **DENNY CHIN,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **CHENG XI WU,** 14 Petitioner **,** 15 16 **v. 17-3639** 17 **NAC** 18 **MATTHEW G. WHITAKER, ACTING** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Zhiyuan Qian, Esq., Law Office of 24 David Chien, P.C., New York, NY. 25 26 **FOR RESPONDENT:** Alexander J. Lutz, Trial 27 Attorney, Office of Immigration 28 Litigation; Chad A. Readler, 29 Acting Assistant Attorney General, 30 Civil Division; Jeffery R. Leist, 312 Senior Litigation Counsel, Office 1 of Immigration Litigation; United 2 States Department of Justice, 3 Washington, DC. 4 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 petition for review 8 is DENIED. 9 Petitioner Cheng Xi Wu, a native and citizen of the 10 People’s Republic of China, seeks review of an October 13, 11 2017 decision of the BIA affirming a March 6, 2017 decision 12 of an Immigration Judge (“IJ”) denyi ng Wu’s motion to reopen. 13 In re Cheng Xi Wu, No. A 200 919 291 (B.I.A. Oct. 13, 2017), 14 aff’g No. A200 919 291 (Immig. Ct. N.Y. City Mar. 6, 2017). 15 We assume the parties’ familiarity with the underlying facts 16 and procedural history in this case. 17 We have reviewed the IJ’s decision denying reopening as 18 supplemented by the BIA. See Yan Chen v. Gonzales , 417 F.3d 19 268, 271 (2d Cir. 2005). We review the agency’s denial of a 20 motion to reopen for abuse of discretion. Ali v. Gonzales , 21 448 F.3d 515, 517 (2d Cir. 2006). To obtain reopening, a 22 movant must present new, previously unavailable evidence that 23 establishes his prima facie eligibility for the relief 243 sought. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); INS v. 1 Abudu , 485 U.S. 94, 104 (1988). 2 Generally, to prevail on an ineffective assistance claim, 3 an alien must substantially comply with the procedural 4 requirements set forth in Matter of Lozada , 19 I. & N. Dec. 5 637-39 (B.I.A. 1988). These include providing an affidavit 6 “detail[ing] the agreement with former counsel,” proof that 7 former counsel has been notified of the allegations, and proof 8 of filing a complaint with a disciplinary authority. Twum 9

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

INS , 987 F.2d 108, 110 (2d Cir. 1993)). “[A]n alien who has 11 failed to comply substantially with the Lozada requirements 12 in h[is] motion to reopen before the BIA forfeits h[is] 13 ineffective assistance of counsel claim in this Court.” Jian 14 Yun Zheng v. U.S. Dep’t of Justice , 409 F.3d 43, 47 (2d Cir. 15 2005). 16 On appeal, Wu has failed to address the dispositive 17 bases for the agency’s denial of his motion. See Yueqing 18 Zhang v. Gonzales , 426 F.3d 540, 541 n.1,545 n.7 (2d Cir. 19 2005) (providing that issues not raised in an opening brief 20 are waived). Wu does not explain how the evidence that he 21 presented in support of reopening was material and 224 unavailable at the time of his prior hearing, nor does he 1 challenge the agency’s finding that he failed to satisfy 2 the procedural requirements for an ineffective assistance 3 of counsel claim. See Jian Yun Zheng , 409 F.3d at 46-47 4 (holding that our merits review of an ineffective 5 assistance claim is contingent upon petitioner’s 6 substantial compliance with the “reasonable requirements” 7 of Lozada ). Consequently, he has not demonstrated that the 8 agency abused its discretion in denying reopening, Ali , 9 448 F.3d at 517, and we therefore deny his petition for 10 review. 11 Although we need not reach his additional arguments, we 12 write briefly to clarify why they also do not provide an 13 adequate basis for granting the petition. 14 Wu argues that the IJ applied an improper procedural 15 framework in finding that his asylum claim was fraudulent. 16 This argument fails for three reasons. First, Wu did not 17 raise this issue before the BIA. See Lin Zhong v. U.S. Dep’t 18 of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (explaining that 19 issue exhaustion is mandatory). Second, Wu’s attack on the 20 IJ’s order of removal is not properly before us because Wu 21 petitioned for review only of the denial of reopening. See 225 Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89-90 (2d 1 Cir. 2001). Third, the IJ did not independently determine 2 that Wu committed fraud: rather, during the agency 3 proceedings, Wu agreed to give up his asylee status and the 4 IJ simply relied on that concession. 5 Wu also argues that the IJ erred by denying his request 6 for an adjournment. He has not shown, however, that the 7 denial of an adjournment constituted abuse of discretion 8 either in itself or as related to the IJ’s denial of 9 reopening. See Morgan v. Gonzales , 445 F.3d 549, 551 (2d 10 Cir. 2006) (discussing IJ’s broad discretion in ruling on a 11 requested continuance). As noted above, Wu agreed to give 12 up his asylee status, and the record does not establish that 13 he thereafter pursued his adjournment request or that the IJ 14 ever ruled on it. In any event, we identify no abuse of 15 discretion in the BIA’s finding that Wu failed to demonstrate 16 prejudice from the absence of an adjournment: Wu points to no 17 evidence that he could have obtained or argument that he could 18 have presented had the adjournment been granted. 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our rev iew, any stay of removal 21 that the Court previously granted in this petition is VACATED, 226 and any pending motion for a stay of removal in this petition 1 is DISMISSED as moot. Any pending request for oral argument 2 in this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 4 34.1(b). 5

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