09 -3 43 4-ag

Yadgarov v . Holder BIA A097 526 418 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDEN TI AL E FF ECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM IT TED 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 WI TH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 31 day of August, two thousand ten. st 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROBERT A. KATZMANN, 9 REENA RAGGI, 10 C ircuit Judges . 11

_________________________________________ 12 13 ATKHAMZHAN YADGAROV, 14 Petitioner , 15 16 v. 09-3434-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_________________________________________ 22 23 FOR PETITIONER: Alexander J. Segal, Grinberg & 24 Segal, P.L.L.C., New York, 25 New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Linda S. Wernery, Assistant 29 Director; William C. Minick, 30 Attorney, Office of Immigration 31 Litigation, United States Department 32 of Justice, Washington, D.C.2 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Petitioner Atkhamzhan Yadgarov, a native of the former 6 Soviet Union and citizen of Kazakhstan, seeks review of the 7 July 23, 2009, order of the BIA denying his motion to 8 reopen. In re Yadgarov , No. A097 526 418 (B.I.A. July 23, 9 2009). We review the BIA’s denial of a motion to reopen for 1 0 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 1 1 (2d Cir. 2006). We assume the parties’ familiarity with the 1 2 underlying facts and procedural history of the case.

The BIA did not abuse its discretion in denying 13 1 4 Yadgarov’s motion based on its finding that he failed to 1 5 show that his former counsel’s conduct was prejudicial. See 16 Rabiu v. INS , 41 F.3d 879, 882 (2d Cir. 1994); Esposito v. 17 INS , 987 F.2d 108, 111 (2d Cir.1993) (holding that to 1 8 prevail on a claim of ineffective assistance of counsel, a 1 9 petitioner must show that competent counsel would have acted 2 0 otherwise and that he was prejudiced by his counsel’s 2 1 conduct). To show prejudice, Yadgarov contends that his 2 2 attorney failed to instruct him to get documents from3 1 Kazakhstan to support his claims of persecution, implying 2 that such documents existed and would have proved helpful. 3 But, he testified that he had asked family members to send 4 him a statement weeks in advance of his removal hearing, and 5 he has failed to show what documents he would have produced 6 had he received different advice from counsel. Although 7 Yadgarov further contends that his attorney failed to show 8 him a copy of the document purported to be his personal 9 statement, he testified that he wrote the statement himself 1 0 and gave no other indication during the proceedings before 1 1 the IJ that the statement was fabricated. Under these 1 2 circumstances, it was within the Board’s discretion to 1 3 conclude that better advice would have made no material 1 4 difference. 1 5 Finally, because Yadgarov does not challenge the BIA’s 1 6 denial insofar as it construed his motion as a motion to 1 7 reconsider, we do not address that portion of the BIA’s opinion. 18 1 9 For the foregoing reasons, the petition for review is 2 0 DENIED. As we have completed our review, any stay of 2 1 removal that the Court previously granted in this petition 2 2 is VACATED, and any pending motion for a stay of removal in4 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 4 5 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 6 7 8 9