Sarkar v. Garland

20-1197
Sarkar v. Garland
BIA
A073 534 922
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of October, two thousand twenty-
5 two.
6
7 PRESENT:
8 REENA RAGGI,
9 JOSEPH F. BIANCO,
10 STEVEN J. MENASHI,
11 Circuit Judges.
12 _____________________________________
13
14 RAJA SARKAR,
15 Petitioner,
16
17 v. 20-1197
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dustin P. Smith, James Henseler,
25 Hughes Hubbard & Reed LLP, New
26 York, NY.
27
28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
29 Assistant Attorney General; John
30 S. Hogan, Assistant Director;
31 Rebecca Hoffberg Phillips, Trial
32 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Raja Sarkar, a native and citizen of
10 Bangladesh, seeks review of a March 13, 2020 decision of the
11 BIA denying his 2019 motion to reopen. In re Raja Sarkar,
12 No. A073 534 922 (B.I.A. Mar. 13, 2020). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
17 138, 168-69 (2d Cir. 2008). It is undisputed that Sarkar’s
18 2019 motion to reopen was untimely and number barred because
19 it was his sixth motion to reopen filed more than 16 years
20 after removal order became final in 1997. See 8 U.S.C.
21 § 1229a(c)(7)(A), (C)(i) (providing that one motion to reopen
22 may be filed within 90 days of a final order); 8 C.F.R.
23 § 1003.2(c)(2) (same).
2
1 The BIA did not err in declining to excuse the time or
2 number limits based on Sarkar’s claim that his former attorney
3 rendered ineffective assistance by failing to petition for
4 review of the agency’s underlying decision, which denied
5 asylum and related relief on credibility grounds because
6 Sarkar failed to show prejudice. See Rabiu v. INS, 41 F.3d
7 879, 882–83 (2d Cir. 1994). “To demonstrate prejudice, [a
8 petitioner] ha[s] to make a prima facie showing that, but for
9 counsel’s ineffectiveness, ‘he would have been eligible for
10 [asylum] relief,’ and ‘could have made a strong showing in
11 support of his application.’” Scarlett v. Barr, 957 F.3d
12 316, 326 (2d Cir. 2020) (quoting Rabiu, 41 F.3d at 882).
13 In pre-REAL ID Act cases, such as this one, see REAL ID
14 Act, Pub. L. No. 109–13, 119 Stat. 231 (2005); In re S-B-, 24
15 I. & N. Dec. 42, 43, 45 (B.I.A. 2006), an adverse credibility
16 determination must be based on “specific, cogent reasons”
17 that “bear a legitimate nexus” to an applicant’s claim, and
18 any discrepancy must be “substantial” when measured against
19 the record as a whole, Secaida–Rosales v. INS, 331 F.3d 297,
20 307–08 (2d Cir. 2003) (quotation marks omitted); see also Xiu
21 Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008)
3
1 (recognizing that “[t]he REAL ID Act freed an IJ from the
2 nexus and materiality requirements” for inconsistencies).
3 The agency’s underlying adverse credibility
4 determination was supported by the record. The agency
5 reasonably found Sarkar’s demeanor evasive and his testimony
6 nonresponsive: he repeatedly avoided answering questions
7 regarding who reported the abuse he and his family suffered
8 to police, when certain incidents occurred, and the type of
9 injuries he and his family members sustained. See Li Hua Lin
10 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
11 (giving “particular deference” to the trier of fact’s
12 assessment of demeanor). The agency also reasonably relied
13 on Sarkar’s inconsistent statements regarding why his family
14 was first attacked in 1990, whether he was beaten in 1990,
15 what abuse he suffered during specific arrests, and who
16 attempted to attack him in 1994. 1 See Tu Lin v. Gonzales,
1 Contrary to Sarkar’s arguments, the BIA was permitted to
rely on inconsistencies not cited by the IJ, see Fen Yong
Chen v BCIS, 470 F.3d 509, 513–14 (2d Cir. 2006) (noting that
the BIA was “permitted to engage in de novo review of an IJ’s
factual findings” in appeals filed before September 25,
2002), and we may consider inconsistency findings not
explicitly discussed by the BIA, see Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005) (“Where, as here, the BIA
4
1 446 F.3d 395, 402–03 (2d Cir. 2006) (holding that agency may
2 rely on “cumulative effect” of inconsistencies).
3 Accordingly, because the record supports the adverse
4 credibility determination, the BIA did not err in finding
5 that Sarkar failed to show that he was prejudiced by former
6 counsel’s failure to petition this Court for review of that
7 decision. See Scarlett, 957 F.3d at 326; Rabiu, 41 F.3d at
8 882. The prejudice finding is dispositive of Sarkar’s
9 ineffective assistance of counsel claim, which was the sole
10 basis for his argument that the time and number limitations
11 on his motion to reopen should have been excused. See
12 Scarlett, 957 F.3d at 326. Therefore, we do not reach the
13 BIA’s alternative finding that he failed to show deficient
14 performance. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
15 (“As a general rule courts and agencies are not required to
16 make findings on issues the decision of which is unnecessary
17 to the results they reach.”). We otherwise lack jurisdiction
agrees with the IJ’s conclusion that a petitioner is not
credible and, without rejecting any of the IJ’s grounds for
decision, emphasizes particular aspects of that decision, we
will review both the BIA’s and IJ’s opinions-or more
precisely, we review the IJ’s decision including the portions
not explicitly discussed by the BIA.”).
5
1 to review the agency’s “entirely discretionary” decision
2 declining to reopen proceedings sua sponte despite the time
3 and number limits. Ali v. Gonzales, 448 F.3d 515, 518 (2d
4 Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
6