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Kuffour v. Sessions

United States Court of Appeals, First Circuit

October 26, 2018

MARK KWADWO KUFFOUR, Petitioner,
v.
JEFFERSON B. SESSIONS III, United States Attorney General, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Taryn Pleva and the Law Offices of Jan Allen Reiner on brief for petitioner.

          Chad A. Readler, Acting Assistant Attorney General, Civil Division, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Sabatino F. Leo, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE

         Petitioner Mark Kwadwo Kuffour challenges the Board of Immigration Appeals' ("BIA" or "Board") denial of his motion to reconsider its order refusing to reopen his case. Finding no abuse of discretion, we deny his petition for review.

         I.

         Kuffour is a citizen of Ghana who unlawfully entered the United States in 1997. In July 2009, he was served with a notice to appear charging him with removability. Kuffour engaged attorney Obadan Iziokhai, who submitted pleadings on his behalf seeking cancellation of removal based on hardship to his U.S.-citizen daughter and voluntary departure. See 8 U.S.C. §§ 1229b(b), 1229c(b). However, Iziokhai withdrew from representing Kuffour at the start of his March 2014 removal hearing, and Kuffour proceeded at the hearing pro se.

         The Immigration Judge ("IJ") denied Kuffour's request for cancellation of removal on the ground that he had not shown that his daughter would suffer the requisite "exceptional and extremely unusual hardship" to justify that relief. See id. § 1229b(b)(1)(D). The IJ also denied voluntary departure. Kuffour then hired attorney Randy Feldman to assist him in filing an appeal to the BIA.

         Before the BIA, Kuffour challenged the IJ's voluntary departure ruling and asked, based on an executive order, that the Board administratively close his proceedings. He did not appeal the denial of cancellation of removal. The BIA affirmed the IJ's denial of voluntary departure and declined to administratively close the proceedings. Kuffour once again obtained new counsel and moved to reopen the proceedings based on the asserted ineffective assistance of his two previous attorneys. Kuffour claimed that the attorneys' deficient representation had "eliminated [his] right to pursue his application for Cancellation of Removal and thereby[] to potentially remain in the United States if his application was granted." Kuffour claimed that, but for the ineffective assistance, he would have provided documents showing his eligibility for cancellation of removal; however, he did not submit such documents with the motion to reopen.

         In denying the motion to reopen, the BIA observed that Kuffour had "proffered no evidence in support of his asserted eligibility for either cancellation of removal . . . or . . . voluntary departure" and, hence, had failed to show "patent error or prejudice." The BIA also found that the motion did not comply with the procedural requirements for bringing an ineffective assistance of counsel claim in immigration proceedings. See Punzalan v. Holder, 575 F.3d 107, 109 n.1 (1st Cir. 2009); Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).

         Kuffour did not file a petition for review of that decision, but he instead sought reconsideration from the BIA. In his motion to reconsider, Kuffour asserted that the BIA made factual errors when it concluded that he had neither proven eligibility for cancellation of removal nor shown ineffective assistance of counsel. He further claimed that the BIA "made a mistake of fact and law" when it concluded that he had not satisfied the procedural requirements for an ineffective assistance claim.

         The BIA denied the motion to reconsider. It observed, inter alia, that Kuffour "does not identify any prior argument presented on appeal that was overlooked by the Board[;] nor does [he] identify any error of law or fact in the [original] decision based on the record then before the Board." The BIA also reiterated that Kuffour had not complied with the ...


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