Julio CUTANDA-HIERREZUELO, Petitioner, v. Janet NAPOLITANO, Secretary, Dept. of Homeland Security, Respondent, 402 F. App'x 558

SUMMARY ORDER Petitioner Julio Cutanda-Hierrezuelo, a native and citizen of the Dominican Republic, seeks review of the July 25, 2008 order of the BIA, which denied his motion to reopen. In re Julio Cutanda-Hierrezuelo, No. [ AXXX XXX XXX ] (B.I.A. July 25, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. As an initial matter, contrary to the Respondent’s contention, the petition, which was received by the district court’s pro se office on August 22, 2008, see 2d Cir. Dkt.

No. 08-6030-ag at 12/10/2008 Entry (Transfer Order at 1 n. 1), is timely as to the BIA’s July 25, 2008 order. See 8 U.S.C. § 1252(b)(1). However, contrary to the Cutanda-Hierrezuelo’s contentions, this July 25, 2008 order is the only order presently before us for review; we have already dismissed in part and denied in part his petition for review of the agency’s August 2004 final order of removal in this case. See Cutanda-Hierrezuelo v. Mukasey, 265 Fed.Appx. 28 (2d Cir.2008) (Summary Order).

Because Cutanda-Hierrezuelo has failed to sufficiently argue in his briefs that the BIA erred in denying his motion to reopen, we deem any such arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Moreover, even if we liberally construe Cutanda-Hierrezuelo’s submissions as challenging the July 25, 2008 order, see, e.g., Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir.2002), the BIA did not abuse its discretion in denying Cutanda-Hierrezuelo’s motion to reopen as both untimely and lacking in merit. See Kaur v.

BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); see also 8 C.F.R. § 1003.2(c)(2). Insofar as Cutanda-Hierrezuelo’s reply brief can be liberally construed as arguing that his prior counsel was ineffective, he has waived any such claim by failing to raise it in his opening brief, see Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 568 n. 4 (2d Cir.1998), and this claim is also unexhausted, as he failed to raise it before the agency, see Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 107 n. 1, 119-22 (2d Cir.2007), and, additionally, there is no indication that he has complied with the requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988). 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).