Devang Patel v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-3555
____________
DEVANG SURESHBHAI PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(A204-538-832)
Immigration Judge: John B. Carle
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
(November 8, 2021)
Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges.
(Filed: November 26, 2021)
___________
OPINION *
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
HARDIMAN, Circuit Judge.
Devang Patel petitions for review of a decision by the Board of Immigration
Appeals denying his motions to reopen and to reconsider. We will deny the petition.
I
A native and citizen of India, Patel was admitted into the United States at Chicago,
Illinois in 2008 on an H-1B visa. His visa expired on September 30, 2009, but he
remained in the United States illegally. In 2019, the Department of Homeland Security
sought to remove Patel from the country, after he was convicted of three state crimes:
theft by unlawful taking, 18 Pa. Cons. Stat. § 3921(a); receipt of stolen property, 18 Pa.
Cons. Stat. § 3925(a); and conspiracy to commit theft by unlawful taking, 18 Pa. Cons.
Stat. § 903. At a hearing before an immigration judge, Patel’s counsel conceded the
crimes involved moral turpitude (CIMTs), which made Patel ineligible for discretionary
relief. See 8 U.S.C. § 1227(a)(2). Nevertheless, Patel applied for cancellation of removal
and adjustment of status. The IJ pretermitted Patel’s application for cancellation, but
continued the hearing to give Patel a chance to apply for asylum. Patel ultimately filed an
I-589 and proceeded to a hearing on the merits of his “fear-based claim,” despite his
counsel’s continued focus on cancellation of removal. A.R. 309–10.
The IJ found Patel credible but denied his applications for asylum, withholding of
removal, and protection under the Convention Against Torture, ordering him removed to
India. Beyond noting that Patel was ineligible for cancellation of removal because of his
CIMT convictions, the IJ found Patel’s asylum application untimely and not subject to an
exception. The IJ concluded that the harm Patel suffered and feared in India was based on
2
personal matters unrelated to his religion or any other protected ground, and that his CAT
claims were too speculative. 1 The IJ also noted that Patel’s case was “woefully
uncorroborated.” A.R. 355.
In May 2020, Patel appealed pro se, challenging only the BIA’s decision denying
his application for cancellation of removal. A month later, Patel’s new counsel filed two
motions: (1) a motion with the BIA to reopen his removal proceedings based on
ineffective assistance of his prior counsel and new evidence; and (2) a motion to
reconsider its decision affirming the IJ’s order of removal. The BIA denied both motions.
This timely petition for review followed.
II
We have jurisdiction to review the BIA’s decision denying the motion to reopen
and the motion to reconsider under 8 U.S.C. § 1252(a)(1). Cruz v. Att’y Gen., 452 F.3d
240, 246 (3d Cir. 2006). We review these denials for abuse of discretion, “regardless of
the underlying basis of the alien’s request for relief.” Pllumi v. Att’y Gen., 642 F.3d 155,
158 (3d Cir. 2011). Unless the BIA’s decision was “arbitrary, irrational, or contrary to
law,” we will deny Patel’s petition. Id.1
In applying for relief and protection from removal, Patel claimed that two men would
“try to kill [him]” if he returned to India: his uncle living in India and his former business
partner in the United States, who could “hire a hitman to kill [him] in India.” A.R. 332,
334. While both men allegedly seek repayment of money Patel lost gambling, the IJ
found that Patel did not establish “a likelihood that he would be subjected to torture
inflicted by or at the instigation of or with the consent or acquiescence of” the Indian
government. A.R. 224.
3
For motions to reopen claiming ineffective assistance of counsel, movants must
show that “competent counsel would have acted otherwise” and that they were
“prejudiced by counsel’s poor performance.” Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3d
Cir. 2007) (citation omitted). The prejudice inquiry thus requires us to look at the BIA’s
own standard of review for motions to reopen: “The BIA may deny a motion to reopen if
it determines that (1) the alien has not established a prima facie case for the relief sought;
(2) the alien has not introduced previously unavailable, material evidence; or (3) in the
case of discretionary relief (such as asylum), the alien would not be entitled to relief even
if the motion was granted.” Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010)
(cleaned up); 8 U.S.C. § 1229a(c)(7)(C)(ii).
Before the BIA, Patel argued that his prior counsel provided ineffective assistance
by failing to submit evidence supporting his I-589 application and “not prepar[ing] him
for the individual hearing on this application.” A.R. 67. But the BIA determined that prior
counsel’s performance had not prejudiced Patel because the IJ denied Patel’s application
for withholding of removal and CAT protection based on his “failure to establish
mandatory elements of the relief requested,” rather than lack of corroboration. A.R. 4.
Given Patel’s testimony and affidavit, the BIA found the IJ’s decision was not clearly
erroneous. See Huang, 620 F.3d at 381.
The record supports the BIA’s determination. Patel never contested the IJ’s
finding that his “fears [of] returning to India due to past threats from his uncle regarding a
dispute over money” involve “a personal matter unrelated to his religion or any other
protected ground.” A.R. 4. So Patel could not establish eligibility for withholding of
4
removal or CAT protection, “even if he had corroborated his claim.” A.R. 4. Because
Patel’s new evidence would not likely alter the outcome of his claims for relief or
protection from removal, the BIA correctly found that he was not prejudiced by prior
counsel. A.R. 4. Thus, the BIA did not abuse its discretion in denying Patel’s motion to
reopen.
The BIA’s conclusion that Patel could not establish eligibility for withholding of
removal or CAT protection also supports its denial of the motion for reconsideration.
Patel criticizes the IJ for not giving him an “opportunity to provide evidence . . . in order
to corroborate [his] claims.” A.R. 46. But Patel could not establish eligibility for relief or
protection from removal even had he corroborated his claim, so the BIA’s decision
denying his motion to reconsider was not irrational, arbitrary, or contrary to law.
* * *
For the reasons stated, we will deny Patel’s petition for review.
5