Hossain v. Barr BIA Segal, IJ A200 944 682

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
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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 30
th
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

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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,
421 F.3d 149, 157 (2d Cir. 2005). “A motion to remand that
relies on newly available evidence is held to the substantive
requirements of a motion to reopen.” Id. at 156. A movant
seeking remand for consideration of new evidence must present

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“material, previously unavailable evidence.” Id.; see
8 C.F.R. § 1003.2(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, 41 F.3d 879, 882 (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.

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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, 265 F.3d 83, 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-, 25 I. & N. Dec. 474, 479 (BIA 2011); see Li
Yong Cao, 421 F.3d at 157. Accordingly, the BIA did not
abuse its discretion in determining that remand was not
required on this ground.

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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