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. * 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). 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,

(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

2 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,

, 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

(c)(1); INS v. Abudu,

(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,

(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,

(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 3 § 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

(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

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. 4 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).”

(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

(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

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

5 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,

(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,

, 484–85 (2d Cir. 2010)

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

. 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,

(2d

6 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

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