Patel v. Garland ( 2023 )

20-2837
Patel v. Garland
BIA
Christensen, IJ
A209 433 766/767/768
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of June, two thousand twenty-three.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 RAYMOND J. LOHIER, JR.,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 RAKESH KUMAR PATEL, SUSHILABEN
14 PATEL, KISHAN PATEL,
15 Petitioners,
16
17 v. 20-2837
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Dalbir Singh, Esq., Dalbir Singh
25 & Associates, PC, New York, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Anthony P.
1 Nicastro, Assistant Director;
2 Ilana J. Snyder, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
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 DENIED.
10 Petitioners Rakesh Kumar Patel (“Patel”), Sushilaben
11 Patel, and Kishan Patel, natives and citizens of India, seek
12 review of an August 14, 2020 decision of the BIA affirming a
13 September 12, 2018 decision of an Immigration Judge (“IJ”)
14 denying Patel’s application for asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”).* In re Rakesh Kumar Patel, et al., No. A209 433
17 766/767/768 (B.I.A. Aug. 14, 2020), aff’g No. A209 433
18 766/767/768 (Immig. Ct. N.Y. City Sept. 12, 2018). We assume
19 the parties’ familiarity with the underlying facts and
20 procedural history.
21 We review the IJ’s decision as supplemented by the BIA’s
22 decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
* We refer primarily to Rakesh Patel as his wife and son were
derivative beneficiaries on his application.
2
1 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
2 268, 271 (2d Cir. 2005). The applicable standards of review
3 are well established. “[T]he administrative findings of fact
4 are conclusive unless any reasonable adjudicator would be
5 compelled to conclude to the contrary.” 8 U.S.C.
6 § 1252(b)(4)(B); see Yanqin Weng v. Holder, 562 F.3d 510, 513
7 (2d Cir. 2009) (reviewing factual findings for substantial
8 evidence and questions of law and application of law to fact
9 de novo); Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.
10 2009) (reviewing corroboration findings for substantial
11 evidence).
12 Patel alleged that members of the ruling political party
13 in India attacked and threatened him because of his membership
14 in the Congress Party, an opposing party, and continued to
15 look for him after he left India. We find no error in the
16 agency’s conclusion that he failed to meet his burden of
17 proof. “In determining whether the applicant has met the
18 applicant’s burden, the trier of fact may weigh the credible
19 testimony along with other evidence of record. Where the
20 trier of fact determines that the applicant should provide
21 evidence that corroborates otherwise credible testimony, such
22 evidence must be provided unless the applicant does not have
3
1 the evidence and cannot reasonably obtain the evidence.” 8
2 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun v. Sessions, 883 F.3d 23,
3 28 (2d Cir. 2018) (“[I]n some cases . . . an applicant may be
4 generally credible but his testimony may not be sufficient to
5 carry the burden of persuading the fact finder of the accuracy
6 of his claim of crucial facts if he fails to put forth
7 corroboration that should be readily available.”). In
8 determining whether to deny relief for lack of corroboration,
9 an IJ should identify “specific pieces of missing evidence
10 and show that it was reasonably available,” provide an
11 opportunity for explanation, and “assess any explanation
12 given.” Wei Sun, 883 F.3d at 31 (explaining that BIA’s
13 interpretation of § 1158(b)(1)(B)(ii) comports with our
14 decision in Chuilu Liu, 575 F.3d at 198).
15 The agency did not err in concluding that Patel failed
16 to meet his burden because he did not provide any documentary
17 evidence to support his claim. The IJ identified the missing
18 corroboration in the form of country conditions evidence,
19 letters from Patel’s fellow Congress Party members and his
20 brother, and Patel’s Congress Party identification card.
21 Cert. Admin. R. 18-19. The evidence was reasonably available
22 either through research (country conditions) or because, as
4
1 Patel testified, he could have obtained letters from his
2 fellow party members and his brother and produced a Congress
3 Party identification card. Id. The IJ was not required to
4 credit Patel’s explanation that his counsel was mistaken
5 about the hearing date because Patel and his counsel were
6 informed of the hearing in person a year before the hearing
7 and received written notice five months before the hearing.
8 Id. And Patel did not subsequently produce the corroboration
9 on appeal.
10 Patel’s ineffective assistance of counsel claim also
11 fails. For remand based on ineffective assistance, Patel had
12 to demonstrate to the BIA “that competent counsel would have
13 acted otherwise and . . . that he was prejudiced by his
14 counsel’s performance.” Rabiu v. INS, 41 F.3d 879, 882 (2d
15 Cir. 1994) (quotation marks omitted). To show prejudice, a
16 petitioner must “make a prima facie showing that, but for
17 counsel’s ineffectiveness, he would have been eligible for
18 . . . relief, and could have made a strong showing in support
19 of his application.” Scarlett v. Barr, 957 F.3d 316, 326 (2d
20 Cir. 2020) (quotation marks omitted). Patel did not
21 establish prejudice because he did not submit the missing
22 documents (his Congress Party identification card or letters
5
1 from fellow party members and his brother) on appeal or
2 identify what evidence he would have submitted but for
3 counsel’s errors.
4 The agency’s conclusion that Patel failed to meet his
5 burden of proof with reasonably available corroboration is
6 dispositive of asylum, withholding of removal, and CAT relief
7 because all three claims were based on the same factual
8 predicate. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir.
9 2010).
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
6