Diarra v. Holder

10-1034-ag (L)
Diarra v. Holder
BIA
DeFonzo, IJ
A098 158 586
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
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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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8th day of February, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
______________________________________
MADOU DIARRA,
Petitioner,
10-1034-ag (L)
v. 10-4127-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Jay Ho Lee, Jay Ho Lee Law Offices
LLC, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Franklin M.
Johnson, Jr., Trial Attorney, Office
of Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of these petitions for review of
two Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review in docket number 10-1034-ag (L) is DENIED and the
petition for review in 10-4127-ag (Con) is GRANTED.
Petitioner Madou Diarra, a native and citizen of
Mauritania, seeks review of: (1) the February 24, 2010
decision of the BIA affirming the August 4, 2008 decision of
Immigration Judge (“IJ”) Paul A. DeFonzo denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”), In re Madou
Diarra, No. A098 158 586 (B.I.A. Feb. 24, 2010), aff’g No.
A098 158 586 (Immig. Ct. N.Y. City Aug. 4, 2008); and
(2) the September 27, 2010, decision of the BIA denying his
motion to reopen, In re Madou Diarra, No. 098 158 586
(B.I.A. Sept. 27, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
The only issue before us is Diarra’s challenge to the
BIA’s denial of his motion to reopen because, although he
petitioned for review of the agency’s denial of his asylum
application, he raises no challenges to that decision in his
brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1
(2d Cir. 2005) (“[Petitioner] has abandoned any challenge to
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the IJ's denial of his claim . . . by failing to discuss
this claim anywhere in his brief.”). We review the BIA’s
denial of a motion to reopen for abuse of discretion. See
Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Here,
the BIA abused its discretion in finding that Diarra failed
to demonstrate that his former counsel, Ronald S. Salomon,
provided him with ineffective assistance causing him
prejudice.
In order to prevail on a claim of ineffective
assistance of counsel, a movant must show that competent
counsel would have acted otherwise, and that he was
prejudiced by his counsel’s performance. See Rabiu v. INS,
41 F.3d 879, 882-83 (2d Cir. 1994); Esposito v. INS, 987
F.2d 108, 111 (2d Cir. 1993). In this case, Salomon’s
office prepared and submitted to the IJ an affidavit written
in English, signed by Diarra, stating that the May 20, 1990,
date of departure from Mauritania provided in Diarra’s
asylum application should be corrected to April 20, 1989.
Instead of correcting an existing inconsistency between the
May 20, 1990 date on the asylum application and the May 20,
1989 date provided in Diarra’s supporting statement,
however, the affidavit created a new inconsistency in the
record. In determining that Diarra failed to demonstrate
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that Salomon was ineffective for preparing and submitting
that affidavit, the BIA rejected Diarra’s “convenient
explanation” that he was asked by Salomon’s office to sign a
blank piece of paper later used for the affidavit,
concluding without explanation that the affidavit did “not
lend itself to pre-signing.” It is unclear from the record
how the BIA reached this conclusion because there is nothing
on the face of the affidavit that would indicate that it was
signed only after preparation, as the signature line is
separate from all other text on the page. Moreover, the BIA
did not acknowledge that Diarra does not read English, and
would have relied on the preparer to provide the correct
month of May in the affidavit, or his attorney to discover
that the month of April was written in error. Because
competent counsel would not have prepared an affidavit
attempting to resolve an inconsistency in the record that
instead created a new inconsistency, and because the BIA
failed to provide a rational explanation for discrediting
Diarra’s assertions, it abused its discretion in concluding
that Diarra failed to demonstrate that Salomon was
ineffective.* See Ke Zhen Zhao v. U.S. Dep’t of Justice,
*
We note that subsequent to the BIA’s decision,
Salomon was suspended from practice before this Court for
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265 F.3d 83, 93 (2d Cir. 2001); see also Rabiu, 41 F.3d at
882-83.
Additionally, the BIA abused its discretion in
concluding that Diarra failed to establish that he was
prejudiced by Salomon’s ineffective assistance. In finding
Diarra not credible, the IJ relied heavily on the
inconsistency created by the affidavit Salomon submitted.
Moreover, the BIA abused its discretion in concluding that
Diarra was not prejudiced because his claim of ineffective
assistance “d[id] not, independently, remedy the lack of
corroborative evidence in his initial asylum application,”
as a lack of corroborating evidence alone would not have
been sufficient to support the IJ’s adverse credibility
a period of three months beginning November 11, 2010, see
In re Salomon, 402 F. App’x 546, 549-50 (2d Cir. 2010)
(unpublished), and was suspended from practice before the
immigration courts, the BIA, and the Department of
Homeland Security for a period of six months beginning
November 23, 2010, see Matter of Ronald S. Salomon, 25 I.
& N. Dec. 559, 562 (BIA 2011). These suspensions are
relevant to Diarra’s claim of ineffective assistance of
counsel as they resulted from Salomon’s failure to
diligently prosecute cases of aliens from West Africa
between 2005 and 2008 because he had become “overwhelmed”
by his case load. In re Salomon, 402 F. App’x at 547,
553, 555; see also 25 I. & N. Dec. at 561-62. Moreover,
based on his suspensions for misconduct in similar cases,
we find questionable the BIA’s presumption that a
document prepared by Salomon accurately reflected the
facts as provided by Diarra. See Yi Long Yang v.
Gonzales, 478 F.3d 133, 143-44 (2d Cir. 2007).
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determination. See Moussa Diallo v. INS, 232 F.3d 279, 287
(2d Cir. 2000) (“[C]orroboration cannot be the only factor
taken into account because this would effectively require
corroboration in all cases, contrary to explicit provisions
in the law that applicants may be able to rely exclusively
on their testimony.”). Although two other inconsistencies
formed the basis for the IJ’s adverse credibility
determination, we cannot confidently predict that those
additional findings were sufficient to call into question
Diarra’s credibility. See Shunfu Li v. Mukasey, 529 F.3d
141, 150 (2d Cir. 2008) (“[O]ur decision to uphold the
agency decision or to remand for further proceedings depends
on how confidently we can predict that the agency would
reach the same decision absent the errors that were made.”)
(internal quotation marks omitted).
For the foregoing reasons, the petition for review in
docket number 10-1034-ag (L) is DENIED and the petition for
review in docket number 10-4127-ag (Con) is GRANTED. As we
have completed our review, the pending motion for a stay of
removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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