Singh v. Garland ( 2022 )

20-1855
Singh v. Garland
BIA
A206 443 847
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
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 21st day of November, two thousand twenty-
5 two.
6
7 PRESENT:
8 JOSEPH F. BIANCO,
9 BETH ROBINSON,
10 MYRNA PÉREZ,
11 Circuit Judges.
12 _____________________________________
13
14 GURDEV SINGH,
15 Petitioner,
16
17 v. No. 20-1855
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jagbir S. Terkiana, San Jose, CA.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Greg D. Mack,
28 Senior Litigation Counsel; Margot
29 L. Carter, Senior Litigation
1 Counsel, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is GRANTED.
10 Petitioner Gurdev Singh, a native and citizen of India,
11 seeks review of a May 21, 2020 decision of the BIA denying
12 his motion to reopen his removal proceedings based on
13 ineffective assistance of counsel. In re Gurdev Singh, No.
14 A 206-443-847 (B.I.A. May 21, 2020). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 Our review is limited to the BIA’s denial of reopening
17 because Singh timely petitioned for review of only that
18 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
19 F.3d 83, 89–90 (2d Cir. 2001). In considering challenges to
20 the BIA’s denial of reopening, “we review the factfinding
21 below for abuse of discretion” and “we review de novo
22 constitutional claims and questions of law.” See Luna v.
23 Holder, 637 F.3d 85, 102—03 (2d Cir. 2011).
24 In the removal proceeding context, “[i]neffective
25 assistance of counsel . . . occurs when counsel’s performance
2
1 impinged upon the fundamental fairness of the hearing in
2 violation of the fifth amendment due process clause[,]” that
3 is “when (1) competent counsel would have acted otherwise,
4 and (2) the alien was prejudiced by counsel’s performance.”
5 Iavorski v. INS, 232 F.3d 124, 128–29 (2d Cir. 2000) (internal
6 quotation marks omitted).
7 The BIA erred in concluding that Singh failed to
8 establish ineffective assistance of counsel. The immigration
9 judge (“IJ”) found that Singh was not credible because he
10 claimed in his asylum application that he stopped working as
11 a farmer in India in June of 2013 and that he left India in
12 July of 2013. These dates contradicted one of the central
13 claims in Singh’s various petitions for relief: that he was
14 attacked in India in August of 2013. Singh testified to the
15 IJ that he departed India in September of 2013. When the IJ
16 flagged that this testimony was inconsistent with the dates
17 provided in his asylum application, Singh testified that he
18 did not understand, could not explain the discrepancy, and
19 reiterated that he left India in September of 2013. Singh’s
20 testimony that he was attacked in August of 2013 and fled
21 India in September of 2013 is consistent with a written
22 declaration provided by Singh in this matter, the oral
3
1 testimony he gave during his credible fear interview,
2 affidavits from family members, and an affidavit of a
3 physician who claims to have treated Singh for “[b]lunt
4 injuries of back and legs and nasal bleedings” in a hospital
5 in Jalmana, India on August 18, 2013.
6 Singh’s former counsel, Mukta Chand (“Chand”) informed
7 the IJ that the June and July dates in the asylum application
8 were errors. The IJ rejected this explanation, found Singh’s
9 testimony about the attacks in India to lack credibility, and
10 denied asylum, withholding of removal, and CAT relief. Singh
11 appealed, but the BIA affirmed the IJ’s decision. Singh did
12 not petition for review in this Court.
13 Instead, Singh filed a timely motion to reopen with the
14 BIA, arguing that his former counsel, Chand, was ineffective.
15 As is relevant here, Singh alleges that he knew Chand had
16 entered incorrect dates in his asylum application concerning
17 the end of his employment and his departure from India, that
18 he had asked her to correct the errors, and that she failed
19 to do so. In response to the bar complaint that Singh filed
20 against her, Chand claims that Singh himself provided her
21 with the disputed dates, and that she simply relied on Singh’s
22 representations.
4
1 The BIA denied Singh’s motion to reopen, finding that he
2 did not persuasively demonstrate that Chand introduced the
3 alleged errors into the application. The BIA weighed Singh’s
4 allegations in his motion against Chand’s statements and the
5 fact that Singh swore at his immigration hearing that the
6 contents of his application were read to him in his native
7 language and were correct. The BIA credited Chand’s version
8 of events and concluded that because Singh gave Chand the
9 incorrect dates, he did not suffer from ineffective
10 assistance of counsel.
11 While the BIA did not abuse its discretion in crediting
12 Chand’s version of events over Singh’s, the BIA erred as a
13 matter of law in concluding that Singh had not established
14 that he received ineffective assistance of counsel. Even
15 assuming that Chand’s version of events is accurate, Chand’s
16 representation of Singh was inadequate. In Chand’s telling,
17 Singh provided her with incorrect dates, and she simply
18 recorded those dates in the application notwithstanding that
19 the dates plainly rendered his timeline impossible. She then
20 realized during the IJ hearing that the dates were erroneous,
21 and argued in her brief on appeal to the BIA that the dates
22 included in the asylum application were erroneous.
5
1 Chand’s failure to address the plainly inconsistent dates
2 to fix what she herself claims were errors renders her
3 performance incompetent. Competent counsel would have
4 realized when preparing the application, and in preparing for
5 the hearing, that the dates included in the asylum application
6 did not make sense. Competent counsel would have recognized
7 that one cannot have fled India in July of 2013 and then have
8 been attacked in India in August of 2013. Competent counsel
9 would have worked with their client to confirm the correct
10 timeline and fix the error before submitting the application.
11 While even “unwise” tactical or strategic decisions “that
12 ultimately fizzle and redound to the client’s detriment” do
13 not necessarily constitute ineffective assistance of counsel,
14 see Jiang v. Mukasey, 522 F.3d 266, 270–71 (2d Cir. 2008),
15 there is no possible strategic or tactical reason for allowing
16 a client to submit an asylum application that presents a
17 timeline that is facially impossible. And while an attorney
18 can be forgiven for overlooking minor inconsistencies, an
19 attorney’s failure to flag and resolve a factual error that
20 renders their client’s claims for relief incomprehensible is
21 the kind of mistake that “self-evident[ly]” constitutes
22 ineffective assistance of counsel. Cf. Aris v. Mukasey, 517
6
1 F.3d 595, 596 (2d Cir. 2008) (explaining that it is “self-
2 evident” that failing to properly advise a client as to the
3 date of their immigration hearing constitutes ineffective
4 assistance of counsel).
5 Chand’s failure to flag and resolve the mistaken dates,
6 furthermore, plainly prejudiced Singh. As the government
7 concedes, the IJ based the adverse credibility finding solely
8 on the inconsistency between Singh’s testimony regarding the
9 August 2013 attack and the dates listed in Singh’s asylum
10 application. Singh has therefore established that he was
11 deprived of effective assistance of counsel during his
12 removal proceedings in violation of his due process rights.
13 See Iavorski, 232 F.3d at 128–29.
14 For the foregoing reasons, the petition for review is
15 GRANTED. The BIA’s decision is VACATED, and the case is
16 REMANDED to the BIA for proceedings consistent with this
17 order.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
7