Fuju Shang v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION DEC 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FUJU SHANG, No. 14-71355
Petitioner, Agency No. A097-864-702
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2015**
Pasadena, California
Before: REINHARDT and CHRISTEN, Circuit Judges and SEDWICK,*** District
Judge.
Petitioner Fuju Shang, a citizen of the People’s Republic of China, petitions
for review of the BIA’s denial of her motion to reopen based on ineffective
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John W. Sedwick, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
assistance of counsel before the Immigration Judge (IJ) and Board of Immigration
Appeals (BIA). We review the BIA’s denial of a motion to reopen for abuse of
discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), and we
grant the petition.
To “succeed on a claim of ineffective assistance of counsel, an alien must
show both error and prejudice.”1 Singh v. Ashcroft, 367 F.3d 1182, 1186 (9th Cir.
2004). Although the BIA did not abuse its discretion with respect to its conclusion
regarding the performance of Shang’s attorney before the IJ, it did so in denying
her claim based on his performance before the BIA. As the BIA recognized, her
prior attorney’s brief before the BIA was wholly ineffective in that it “did not
meaningfully contest the Immigration Judge’s finding that the harm she
experienced in China did not rise to the level of persecution, and did not address
any of the bases underlying the Immigration Judge’s finding that she failed to
establish a well-founded fear of persecution on account of her religion.” The BIA
nonetheless denied the motion because, in its opinion, the respondent failed to
demonstrate prejudice because she “has not shown that the outcome of [her] appeal
may have been different.”
1
A non-citizen must also comply with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The government does not
dispute that Shang has satisfied those requirements here.
2
Here, the BIA considered the wrong question. Once the BIA determines that
appellate counsel’s performance has been ineffective, it must consider whether the
non-citizen has “plausible grounds for relief.” Lin v. Ashcroft, 377 F.3d 1014,
1027 (9th Cir. 2004) (internal quotations omitted). To establish plausible grounds
for relief, Shang need only “show that the BIA could plausibly have determined
that [she] was [eligible for relief] based on the record before it.” Singh, 367 F.3d at
1189 (second alteration in original). Here, “the BIA had ample evidence that could
plausibly have supported a finding that [Shang] was eligible for asylum” and
withholding of removal.2 Id. Shang testified credibly that she was arrested at an
underground church and spent six days in prison, where she was repeatedly beaten,
and that, after being released, she was fired from her job and forced to report to the
police twenty-three times. That Shang was arrested and beaten because of her
religious beliefs “makes out a plausible claim for eligibility for asylum and
withholding of removal.” Singh, 367 F.3d at 1189. Indeed, this circuit has held
that a similar factual record compelled a finding of past persecution. See Guo v.
Ashcroft, 361 F.3d 1194, 1204 (9th Cir. 2004).
2
Because the record does not demonstrate that Shang “is more likely than
not to be tortured in” China, however, we do not reverse the BIA’s denial of her
motion to reopen her Convention Against Torture claim.
3
We do not express an opinion as to whether the BIA should ultimately
reverse the denial of Shang’s asylum and withholding applications. Rather,
because we conclude that her “claims merit full consideration by the BIA,” Li, 377
F.3d at 1027, we GRANT her petition for review and REMAND so that she may
file a competent appellate brief with the BIA.
REMANDED for further proceedings consistent with this disposition.
4