Singh v. Whitaker ( 2018 )

17-830
Singh v. Whitaker
BIA
Loprest, IJ
A205 409 335
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 TO 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 28th day of November, two thousand
5 eighteen.
6
7 PRESENT:
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 LAKHBIR SINGH,
15 Petitioner,
16
17 v. 17-830
18 NAC
19 MATTHEW G. WHITAKER, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Usman B. Ahmad, Long Island City,
25 NY.
26
27 FOR RESPONDENT: Chad A. Readler, Principal Deputy
28 Assistant Attorney General;
29 Melissa Neiman-Kelting, Assistant
30 Director; Allison Frayer, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
1 Department of Justice, Washington,
2 DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Lakhbir Singh, a native and citizen of India,
9 seeks review of a February 28, 2017, decision of the BIA
10 affirming a May 12, 2016, decision of an Immigration Judge
11 (“IJ”) denying Singh’s motion to reopen his removal
12 proceedings. In re Lakhbir Singh, No. A 205 409 335 (B.I.A.
13 Feb. 28, 2017), aff’g No. A 205 409 335 (Immig. Ct. N.Y. City
14 May 12, 2016). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed the decision of the IJ as supplemented
17 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
18 Cir. 2005). We review the BIA’s denial of Singh’s motion to
19 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
20 515, 517 (2d Cir. 2006). To state an ineffective assistance
21 of counsel claim, the movant must establish, inter alia,
22 (1) deficient representation; and (2) prejudice as a result
2
1 of that deficiency. Rashid v. Mukasey, 533 F.3d 127, 130-31
2 (2d Cir. 2008).
3 The only issue is whether Singh showed the requisite
4 prejudice. A movant seeking to reopen proceedings based on
5 ineffective assistance must show that “counsel’s performance
6 was so ineffective as to have impinged upon the fundamental
7 fairness of the hearing” and that the movant suffered
8 prejudice from it. Changxu Jiang v. Mukasey, 522 F.3d 266,
9 270 (2d Cir. 2008) (per curiam)(quoting Jian Yun Zheng v.
10 U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)); see
11 also Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010)
12 (per curiam). To establish the requisite prejudice, the
13 movant must show that the outcome of the proceeding would
14 have been different had counsel acted more effectively.
15 Debeatham, 602 F.3d at 486.
16 The agency reasonably determined that the adverse
17 credibility determination could not be solely attributed to
18 lack of preparation by Singh’s previous counsel. Mainly,
19 Singh failed to resolve a central discrepancy regarding his
20 reasons for joining the Congress Party — whether he joined
21 voluntarily or was coerced — that gave rise to (a) internal
3
1 inconsistencies in his testimony, (b) inconsistencies between
2 his testimony and credible fear interview, and (c)
3 significant inconsistency among his testimony, application,
4 and documentary evidence. Singh testified that the Congress
5 Party did good work and that he joined because his grandfather
6 and father were members. And he stated in his credible fear
7 interview that he had always supported the Congress Party.
8 But when asked on redirect to explain other statements (in
9 his application and corroborating documents) that he joined
10 to stem harassment from Congress Party members, he did not
11 renounce the written statements; instead, he altered his
12 testimony to say that members of the Congress Party used to
13 harass him, that the harassment stopped when he joined the
14 party, and that he “started liking the party out of fear.”
15 Singh argues that his prior counsel failed to consult
16 him when drafting the written statement that accompanied
17 his asylum application and to review with him the finalized
18 written statement and his medical records and family’s
19 affidavits, which caused him to be surprised by their
20 contents during the hearing. He also contends that the
21 agency failed to recognize that his testimony at the
4
1 credible fear interview was substantially similar to his
2 testimony at the merits hearing and that any
3 inconsistencies arose only when he was confronted with the
4 documents his attorney had prepared. As the agency
5 reasonably found, however, Singh never explained why, when
6 confronted with his statements and record evidence, he
7 adopted their contents rather than explain the
8 discrepancies. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
9 157 (2d Cir. 2008) (according substantial deference to the
10 agency’s findings of fact and “assessment of competing
11 evidence”). Although Singh submitted a personal affidavit
12 explaining that his prior attorney instructed his family
13 members to sign letters prepared in English and that they
14 did not know what they were signing, he did not identify
15 what the inaccuracies were. Finally, Singh did not submit
16 an updated application statement or letters from his family
17 members to clarify what portions of the statements were
18 incorrect. See 8 C.F.R. § 1003.2(c)(1) (requiring motions
19 to reopen to be supported by evidentiary material).
20 Because Singh did not fully explain why his inconsistent
21 testimony was the fault of his prior attorney or document
5
1 what information was correct, the agency did not abuse its
2 discretion in denying reopening, particularly as the
3 underlying adverse credibility determination also relied on
4 Singh’s demeanor and lack of responsiveness.
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6