Opinion
No. 09-10091-ag.
June 24, 2010.
Petition for review of an order of the Board of Immigration Appeals.
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Lila Sljivar, Wilens Baker, P.C., New York, NY, for Petitioner.
Colette J. Winston, Attorney, Office of Immigration Litigation (Tony West, Assistant Attorney General, David Bernal, Assistant Director, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.
PRESENT: RALPH K. WINTER, JOSE A. CABRANES, RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Petitioner Hamad Ahmad ("petitioner" or "Ahmad"), a native and citizen of Pakistan, seeks review of a February 18, 2009 decision of the Board of Immigration Appeals ("BIA") denying his motion to remand his removal proceedings. Petitioner argues that he was entitled to a remand because: (1) the Immigration Judge ("IJ") who denied his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) never informed him that he might be eligible for relief as a battered spouse under 8 U.S.C. § 1229b(b)(2); and (2) his prior attorney was ineffective in failing to seek relief under the special rule for battered spouses. See id. We assume the parties' familiarity with the remaining factual and procedural history of the case.
Petitioner's first argument — that the IJ erred in not informing petitioner that he might be eligible for relief as a battered spouse — was never raised before the BIA. We therefore cannot consider it. See 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right. . . ."); Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 n. 1 (2d Cir. 2007) (explaining that, "though not jurisdictional, issue exhaustion is mandatory" and that "[i]f the government points out to the appeals court that an issue relied on before that court by a petitioner was not properly raised below, the court must decline to consider that issue" (emphases added)).
We also conclude that petitioner's second argument — that his prior counsel was ineffective — does not warrant a remand. We review motions to remand, like motions to reopen, for abuse of discretion. Singh v. U.S. Dep't of Justice, 461 F.3d 290, 293 (2d Cir. 2006); see Debeatham v. Holder, 602 F.3d 481, 484 (2d Cir. 2010). "The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (internal quotation marks omitted).
Among other things, an alien claiming ineffective assistance of counsel must "establish that `counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing.'" Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008) (quoting Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir. 2005)). A deprivation of fundamental fairness requires a showing "1) that competent counsel would have acted otherwise, and 2) that [petitioner] was prejudiced by his counsel's performance." Rabiu v. I.N.S., 41 F.3d 879, 882 (2d Cir. 1994) (internal quotation marks omitted). To show prejudice arising from the failure to pursue a particular form of relief, a petitioner "must make a prima facie showing that he would have been eligible for the relief and that he could have made a strong showing in support of his application." Id.
An alien claiming ineffective assistance of counsel must comply with the procedural requirements set forth by the BIA in In re Lozada, 19 I. N. Dec. 637, 639 (B.I.A. 1988). Debeatham, 602 F.3d at 484-85. Because the government does not dispute that petitioner has complied with the requirements set forth in Lozada, we do not discuss those requirements here.
To demonstrate eligibility for cancellation of removal under the special rule for battered spouses, petitioner was required to show (1) that he had been battered or "subjected to extreme cruelty" by a spouse, (2) that he had been physically present in the United States for a continuous period of at least 3 years, (3) that he had been a person of good moral character during that period, (4) that he was not inadmissable or deportable as a security risk or as a result of criminal convictions, and (5) that removal would result in extreme hardship to petitioner, or a child or parent of petitioner. See 8 U.S.C. § 1229b(b)(2)(A)(i)-(v).
Petitioner has not shown prejudice here because he has not made a prima facie showing that he was eligible for relief as a battered spouse, much less that he could have made a "strong showing in support of his application." Rabin, 41 F.3d at 882. Although petitioner's motion to remand cited physical abuse he had allegedly suffered at the hand his ex-wife, we agree with the BIA that the motion, among other things, "fail[ed] to address, much less demonstrate, how [petitioner's] removal would result in `extreme hardship' to [petitioner] or any qualifying relative." J.A. 3. Accordingly, petitioner failed to demonstrate prejudice resulting from his counsel's alleged ineffective assistance.
Petitioner responds that he had demonstrated extreme hardship to his daughter resulting from his removal during proceedings before the IJ, and that the "particular facts of this case required the BIA to look beyond the motion [to remand] to the record below." Reply Br. 4. Like this Court, however, the BIA is under no obligation to comb the record to create an argument for the petitioner that he has failed to make for himself. Cf. Sioson v. Knights of Columbus, 303 F.3d 458, 459-60 (2d Cir. 2002) (noting that it is not the Court's function to "form an [appellant's] argument for him, by looking into the record to document the `facts' . . . and then examining various combinations of these facts in the light of the legal doctrines he . . . mentions"). Because petitioner's motion to remand in the BIA failed to demonstrate that he was eligible for relief as a battered spouse and that he could have made a strong showing in support of his application, it was not an "abuse of discretion" for the BIA to deny petitioner's motion.
CONCLUSION
We have considered all of the petitioner's arguments and find them to be without merit. For the foregoing reasons the petition for review is DENIED. 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.