Sifuentes-Flores v. Blanche

• Court: U.S. Court of Appeals — Second Circuit
• Docket Number: 24-952 NAC
• Decision Date: 02 October 2026
• Citation: Sifuentes-Flores v. Blanche, 24-952 NAC (2nd Cir. Oct 02, 2026)
• Parties: KENJI JOSE SIFUENTES-FLORES, FIORELLA KATHERIN SANCHEZ- LANDA, H. K. S.-S., Petitioners, v. TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. [1]

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KENJI JOSE SIFUENTES-FLORES, FIORELLA KATHERIN SANCHEZ- LANDA, H. K. S.-S., Petitioners, v. TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. ^[1]

No. 24-952 NAC

United States Court of Appeals, Second Circuit

October 2, 2026

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING 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 1^st day of October, two thousand twenty-six.

FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson Heights, NY.

FOR RESPONDENT: Brett A. Shumate, Acting Assistant Attorney General; Brett F. Kinney, Senior Litigation Counsel; Aric A Anderson, Trial Attorney; Office of Immigration Litigation Civil Division, United States Department of Justice Washington, DC.

PRESENT: JOHN M. WALKER, JR., MICHAEL H. PARK, BETH ROBINSON, Circuit Judges.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals decision, it is hereby ORDERED, ADJUDGED AND DECREED that the petition for review is DENIED.

Petitioners Kenji Jose Sifuentes-Flores, Fiorella Katherin Sanchez-Landa, and their minor child, natives and citizens of Peru, seek review of a March 13, 2024 decision of the Board of Immigration Appeals ("BIA") denying their motion to reopen. In re Kenji Jose Sifuentes-Flores, et al., Nos. A220 342 875/876/877 (B.I.A. Mar. 13, 2024). We assume the parties' familiarity with the underlying facts and procedural history.

"We review the BIA's denial of a motion to reopen . . . for abuse of discretion." See Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir. 2006). "The BIA abuses its discretion if its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir. 2007) (quotation marks omitted). To the extent the motion alleged that prior counsel lacked notice of the briefing schedule, the BIA did not abuse its discretion in denying the motion because there was no evidence to corroborate the allegation; to the contrary, the record reflected that former counsel had notice but failed to file timely because of a miscommunication within his firm.

The BIA also construed the motion to request reopening based on ineffective assistance of counsel. To bring an ineffective assistance claim, a movant must comply with specific procedural prerequisites set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). See Jian Yun Zheng v. U.S. Dep't of Just., 409 F.3d 43, 45-46 (2d Cir. 2005). Thus, a motion based on ineffective assistance of counsel should include

(1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.

Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). We do not require "slavish adherence" to these requirements, but an ineffective assistance claim is forfeited if there is not at least "substantial compliance." Yi Long Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir. 2007). Here, the BIA concluded that Sifuentes-Flores had not satisfied the Lozada requirements. Sifuentes-Flores does not acknowledge this ruling and has therefore abandoned any challenge to the denial of reopening on this basis. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) ("We consider abandoned any claims not adequately presented in an appellant's brief, and an appellant's failure to make legal or factual arguments constitutes abandonment." (quotation marks omitted)).

Finally as the Government argues, only the BIA's decision denying reopening is before us because a petition must be filed within 30 days of the challenged decision. See 8 U.S.C. § 1252(b)(1). A motion to reopen does not toll the time for seeking review of the underlying decision. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (concluding that review was limited to BIA's denial of a motion to reopen where petition for review of that decision was filed timely but petition for review of the underlying denial of asylum was not). Sifuentes-Flores's challenges to the IJ's underlying decision are therefore not properly before us. And they are unexhausted because he did not file a timely brief before the BIA. See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) ("[W]hen an argument made...