Carl Anthony MALCOLM, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 479 F. App'x 396

SUMMARY ORDER 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 DENIED. Carl Anthony Malcolm, a native and citizen of Jamaica, seeks review of a September 6, 2011, order of the BIA denying his motion to reopen his removal proceedings. In re Carl Anthony Malcolm, No. [ AXXX-XXX-XXX ] (B.I.A. Sept. 6, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of the case. 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) (per curiam). In this case, the BIA did not abuse its discretion in denying Malcolm’s motion. An alien raising a claim of ineffective assistance of counsel must substantially comply with the procedures for raising such claims set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.2005). The BIA reasonably concluded that Malcolm did not demonstrate that he notified his former attorney of his allegations against her as required by Lozada, because he did not submit any evidence of such notification.

Additionally, the record supports the BIA’s conclusion that Malcolm failed to demonstrate that he was prejudiced by his former attorney’s alleged ineffective assistance. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006). Malcolm argues that his attorney should not have conceded before the Immigration Judge (“IJ”) that he was convicted under subsection (1) of N.Y. PENAL LAW § 120.00.

But the BIA reasonably concluded that Malcolm was not prejudiced by his attorney’s concession, because the record of conviction submitted by the government in front of the IJ established that Malcolm’s conviction was under that subsection.

Similarly, the BIA reasonably concluded that Malcolm failed to demonstrate that he was prejudiced by his former attorney’s failure to apply for relief under the Convention Against Torture (“CAT”), as Malcolm’s motion to reopen did not establish that he was eligible for CAT relief, because he did not show that any harm he might face from gang violence in Jamaica would occur with the consent or acquiescence of that country’s authorities. See Khouzam v. Ashcroft, 361 F.3d 161, 168-71 (2d Cir.2004). For the foregoing reasons, the petition for review is DENIED.

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).