Dhirendra Sukul v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DHIRENDRA NATH SUKUL, No. 11-72482
Petitioner, Agency No. A075-731-618
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2013**
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Petitioner Dhirendra Nath Sukul petitions for review of the decision of the
Board of Immigration Appeals rejecting his applications for various forms of relief
from removal. Sukul contends that his hearing counsel was so ineffective that he
*
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).
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was unable to reasonably present his case, depriving him of his due process right to
a fair hearing. Specifically, he claims that counsel failed to prepare him to testify
about an alleged incident where Sukul was kidnapped by Fijian authorities, fully
review the record, consult with him and his wife, file certain documents, ask
“proper questions,” and “ensure adequate translation of the hearings.” We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.1
In order to succeed on an ineffective assistance of counsel claim, an
alien must comply with the following procedural requirements: (1) provide an
affidavit detailing the agreement with counsel; (2) notify counsel of the allegations
so that counsel has an opportunity to respond; and (3) disclose whether the alien
has filed a complaint with the disciplinary authorities. Correa-Rivera v. Holder,
706 F.3d 1128, 1131 (9th Cir. 2013) (citing Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988)). Furthermore, the alien must demonstrate that counsel failed to
perform with sufficient competence and that counsel’s failure was prejudicial.
Chuen Piu Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011), cert. denied, __ S.
Ct. __, No. 12-150, 2013 WL 3213548 (June 27, 2013).
1
As the parties are familiar with the facts of the case, we repeat only those
facts necessary to explain our decision.
2
Here, Sukul failed to comply with most (if not all) of the procedural
requirements. Although we do not demand strict compliance where the purposes
of the requirements are “fully served by other means” or counsel’s ineffective
assistance is “obvious and undisputed on the face of the record,” Reyes v. Ashcroft,
358 F.3d 592, 597 (9th Cir. 2004), this is not such a case. On its face, the record
shows that there were several inaccuracies in the application in which Sukul
described the kidnapping incident and that Sukul did not prepare it himself, stating
that he had “no idea” what was in the application. Because Sukul failed to provide
counsel with an opportunity to respond to his claims of ineffective assistance, we
cannot determine whether counsel had valid reasons for declining to elicit
testimony about the alleged incident. Consequently, it is “impossible to determine
whether [Sukul’s] ineffective assistance of counsel claim has merit.” Tamang v.
Holder, 598 F.3d 1083, 1090 (9th Cir. 2010).
Sukul’s failure to comply with the procedural requirements similarly
precludes us from assessing his other claims of ineffective assistance. In any
event, Sukul has not explained how the outcome of the proceedings might have
been affected had counsel performed as he contends she should have, and
consequently, Sukul has not demonstrated prejudice.
PETITION DENIED.
3