17-3416 Hossain v. Barr BIA Segal, IJ A200 944 682 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 30th day of January, two thousand twenty.

PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

ISMAIL HOSSAIN, Petitioner,

v. 17-3416

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Joshua Bardavid, Bardavid Law, New York, NY; Jan Potemkin, Esq., New York, NY.

FOR RESPONDENT: Christopher Bates, Senior Litigation Counsel (Joseph H. Hunt, Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel; Jesse Lloyd Busen, Trial Attorney, Office of Immigration Litigation, on the brief), 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 GRANTED, and the case is REMANDED in part to the BIA for

consideration consistent with this order.

Petitioner Ismail Hossain, a native and citizen of

Bangladesh, seeks review of a BIA decision affirming an

Immigration Judge’s (“IJ”) decision denying Hossain’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”), as well as his

motion to remand. In re Ismail Hossain, No. A200 944 682

(B.I.A. Sept. 29, 2017), aff’g No. A200 944 682 (Immig. Ct.

N.Y. City Aug. 28, 2013). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to remand for

abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice,

(2d Cir. 2005). “A motion to remand that

relies on newly available evidence is held to the substantive

requirements of a motion to reopen.”

. A movant

seeking remand for consideration of new evidence must present

2 “material, previously unavailable evidence.” Id.; see

(c)(1).

In his motion to remand, Hossain argued, inter alia, that

his prior counsel’s ineffective assistance was “a factor and

issue” infecting “all matters regarding [his] case.” A.R. 16.

In order to prevail on a claim of ineffective assistance of

counsel, a noncitizen must show “that competent counsel would

have acted otherwise, . . . and that he was prejudiced by his

counsel’s performance.” Rabiu v. INS,

(2d

Cir. 1994) (internal quotation marks omitted). Hossain’s

motion explained that the BIA had already reopened Hossain’s

proceedings once after finding counsel ineffective for

failing to file an appellate brief and that counsel

subsequently was disbarred in New York for fraudulent

litigation. Hossain then argued that his counsel was also

careless in compiling his I-589 statement and reviewing it

only in a brief and perfunctory manner that resulted in the

omission of important details. Hossain claimed that this

carelessness led to the IJ’s mistaken perception that Hossain

had provided inconsistent—and therefore incredible—

statements in his I-589 and his individual hearing.

3 In reviewing Hossain’s motion, the BIA did not address

his ineffective assistance claim. While expressing no view as

to the merits of this claim, we conclude that by failing to

address it, the BIA abused its discretion. See Ke Zhen Zhao

v. U.S. Dep’t of Justice,

, 97 (2d Cir. 2001)

(finding an abuse of discretion where the BIA failed to

“explain [its] decision adequately”).

We do not find, however, that the BIA abused its

discretion in declining to remand for the IJ to reassess

Hossain’s competence at his hearing in light of medical issues

he experienced a year after that hearing. The record

supports the BIA’s determination that the hearing transcript

does not suggest any competency problem during the underlying

removal proceedings; nor do we discern any error in the BIA’s

conclusion that Hossain’s appeal had not drawn into question

whether he had “a rational and factual understanding of the

nature and object of the proceedings . . . and ha[d] a

reasonable opportunity to examine and present evidence.”

Matter of M-A-M-,

(BIA 2011); see Li

Yong Cao,

. Accordingly, the BIA did not

abuse its discretion in determining that remand was not

required on this ground.

4 For the foregoing reasons, the petition for review is

GRANTED, and the case is REMANDED in part to the BIA for

consideration consistent with this order. As we have

completed our review, any stay of removal that the Court

previously granted in this petition is VACATED, and any

pending motion for a stay of removal in this petition is

DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court

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