No. 08-0062-ag NAC.United States Court of Appeals, Second Circuit.
October 15, 2008.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
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FOR PETITIONER: Salim Sheikh, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant AttorneyGeneral, Norah A. Schwarz, Senior Litigation Counsel, EdwardDurant, Trial Attorney, Office of Immigration Litigation, U.S.Department of Justice, Washington, D.C.
PRESENT: HON. PIERRE N. LEVAL, HON. SONIA SOTOMAYOR,HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Ferdous Wahid, a native and citizen of Bangladesh, seeks review of the December 14, 2007 order of the BIA denying his motion to reopen. In re Ferdous Wahid, No. A73 559 854 (B.I.A. Dec. 14 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, because Wahid did not file a petition for review in this Court of the agency’s underlying denial of asylum and withholding of deportation, we must limit our review to the BIA’s December 2007 decision denying his motion to reopen. Cf. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
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We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Here, we find that the BIA did not abuse its discretion in denying Wahid’s motion to reopen as untimely See 8 C.F.R. § 1003.2(c)(2). A party seeking to reopen proceedings must file his motion within 90 days of the agency’s final order of removal. Id. It is beyond dispute that Wahid’s May 2007 motion to reopen was untimely where it was filed more than ten years after the agency’s final order of removal. However, there is no time limit on a motion to reopen alleging materially changed country conditions See 8 C.F.R. § 1003.2(c)(3).
To the extent that Wahid argues that his marriage to a U.S. citizen and his pending application for adjustment of status make him eligible for reopening, we find that argument is unavailing. Indeed, Wahid’s changed personal circumstances do not bring his motion within the time limitation for motions to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
Moreover, the BIA properly found that while the news articles Wahid submitted were previously unavailable, they failed to “establish a change in circumstances in Bangladesh
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which would warrant the reopening of these proceedings.” Indeed, the majority of Wahid’s news articles described the terrorist acts of Jama’atul Mujahideen Bangladesh (“JMB”), but failed to establish that the JMB targeted Jatiya members or party activists. In short, Wahid’s evidence failed to establish that conditions for Jatiya party members have worsened in any way since February 1997.
Nor did the BIA err in finding that Wahid failed to show that the letters from Jatiya party members and affidavits from family and friends he submitted were previously unavailable. Under 8 C.F.R. § 1003.2(c)(1), a motion to reopen “shall state the new facts that will be proven at a hearing.” This regulation further states that “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Here, the affidavits and letters Wahid submitted are almost entirely devoted to explaining the mistreatment he suffered in Bangladesh at the hands of the Bangladesh National Party in the mid-1990s. There is no indication that such documents were not available or could not have been presented at the hearing before the IJ. See id.
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With respect to Wahid’s claim of ineffective assistance of counsel, the BIA properly determined that he failed to comply with any of the requirements discussed in Matter of Lozada, 19 I. N. Dec. 637 (BIA 1988). As we have held, failure to comply substantially with those requirements constitutes forfeiture of the ineffective assistance of counsel claim. See Jian Yun Zheng v. U.S. Dept. of Justice, 409 F.3d 43, 46 (2d Cir. 2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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