Atkhamzhan YADGAROV, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 391 F. App'x 918

SUMMARY ORDER Petitioner Atkhamzhan Yadgarov, a native of the former Soviet Union and citizen of Kazakhstan, seeks review of the July 23, 2009, order of the BIA denying his motion to reopen. In re Yadgarov, No. [ AXXX XXX XXX ] (B.I.A. July 23, 2009). We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

The BIA did not abuse its discretion in denying Yadgarov’s motion based on its finding that he failed to show that his former counsel’s conduct was prejudicial. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir.1993) (holding that to prevail on a claim of ineffective assistance of counsel, a petitioner must show that competent counsel would have acted otherwise and that he was prejudiced by his counsel’s conduct).

To show prejudice, Yadgarov contends that his attorney failed to instruct him to get documents from Kazakhstan to support his claims of persecution, implying that such documents existed and would have proved helpful. But, he testified that he had asked family members to send him a statement weeks in advance of his removal hearing, and he has failed to show what documents he would have produced had he received different advice from counsel.

Although Yadgarov further contends that his attorney failed to show him a copy of the document purported to be his personal statement, he testified that he wrote the statement himself and gave no other indication during the proceedings before the IJ that the statement was fabricated. Under these circumstances, it was within the Board’s discretion to conclude that better advice would have made no material difference. Finally, because Yadgarov does not challenge the BIA’s denial insofar as it construed his motion as a motion to reconsider, we do not address that portion of the BIA’s opinion.

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 as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).