Singh v. Whitaker

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 2018
• Docket: 17-830
• Status: Unpublished

Opinion

17-830 Singh v. Whitaker BIA Loprest, IJ A205 409 335 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 TO 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 28th day of November, two thousand 5 eighteen. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 LAKHBIR SINGH, 15 Petitioner, 16 17 v. 17-830 18 NAC 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Usman B. Ahmad, Long Island City, 25 NY. 26 27 FOR RESPONDENT: Chad A. Readler, Principal Deputy 28 Assistant Attorney General; 29 Melissa Neiman-Kelting, Assistant 30 Director; Allison Frayer, Trial 31 Attorney, Office of Immigration 32 Litigation, United States 1 Department of Justice, Washington, 2 DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Lakhbir Singh, a native and citizen of India,

9 seeks review of a February 28, 2017, decision of the BIA

10 affirming a May 12, 2016, decision of an Immigration Judge

11 (“IJ”) denying Singh’s motion to reopen his removal

12 proceedings. In re Lakhbir Singh, No. A 205 409 335 (B.I.A.

13 Feb. 28, 2017), aff’g No. A 205 409 335 (Immig. Ct. N.Y. City

14 May 12, 2016). We assume the parties’ familiarity with the

15 underlying facts and procedural history in this case.

16 We have reviewed the decision of the IJ as supplemented

17 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

18 Cir. 2005). We review the BIA’s denial of Singh’s motion to

19 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d

20 515, 517 (2d Cir. 2006). To state an ineffective assistance

21 of counsel claim, the movant must establish, inter alia,

22 (1) deficient representation; and (2) prejudice as a result

2 1 of that deficiency. Rashid v. Mukasey, 533 F.3d 127, 130-31

2 (2d Cir. 2008).

3 The only issue is whether Singh showed the requisite

4 prejudice. A movant seeking to reopen proceedings based on

5 ineffective assistance must show that “counsel’s performance

6 was so ineffective as to have impinged upon the fundamental

7 fairness of the hearing” and that the movant suffered

8 prejudice from it. Changxu Jiang v. Mukasey, 522 F.3d 266,

9 270 (2d Cir. 2008) (per curiam)(quoting Jian Yun Zheng v.

10 U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)); see

11 also Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010)

12 (per curiam). To establish the requisite prejudice, the

13 movant must show that the outcome of the proceeding would

14 have been different had counsel acted more effectively.

15 Debeatham, 602 F.3d at 486.

16 The agency reasonably determined that the adverse

17 credibility determination could not be solely attributed to

18 lack of preparation by Singh’s previous counsel. Mainly,

19 Singh failed to resolve a central discrepancy regarding his

20 reasons for joining the Congress Party — whether he joined

21 voluntarily or was coerced — that gave rise to (a) internal 3 1 inconsistencies in his testimony, (b) inconsistencies between

2 his testimony and credible fear interview, and (c)

3 significant inconsistency among his testimony, application,

4 and documentary evidence. Singh testified that the Congress

5 Party did good work and that he joined because his grandfather

6 and father were members. And he stated in his credible fear

7 interview that he had always supported the Congress Party.

8 But when asked on redirect to explain other statements (in

9 his application and corroborating documents) that he joined

10 to stem harassment from Congress Party members, he did not

11 renounce the written statements; instead, he altered his

12 testimony to say that members of the Congress Party used to

13 harass him, that the harassment stopped when he joined the

14 party, and that he “started liking the party out of fear.”

15 Singh argues that his prior counsel failed to consult

16 him when drafting the written statement that accompanied

17 his asylum application and to review with him the finalized

18 written statement and his medical records and family’s

19 affidavits, which caused him to be surprised by their

20 contents during the hearing. He also contends that the

21 agency failed to recognize that his testimony at the 4 1 credible fear interview was substantially similar to his

2 testimony at the merits hearing and that any

3 inconsistencies arose only when he was confronted with the

4 documents his attorney had prepared. As the agency

5 reasonably found, however, Singh never explained why, when

6 confronted with his statements and record evidence, he

7 adopted their contents rather than explain the

8 discrepancies. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

9 157 (2d Cir. 2008) (according substantial deference to the

10 agency’s findings of fact and “assessment of competing

11 evidence”). Although Singh submitted a personal affidavit

12 explaining that his prior attorney instructed his family

13 members to sign letters prepared in English and that they

14 did not know what they were signing, he did not identify

15 what the inaccuracies were. Finally, Singh did not submit

16 an updated application statement or letters from his family

17 members to clarify what portions of the statements were

18 incorrect. See 8 C.F.R. § 1003.2(c)(1) (requiring motions

19 to reopen to be supported by evidentiary material).

20 Because Singh did not fully explain why his inconsistent

21 testimony was the fault of his prior attorney or document 5 1 what information was correct, the agency did not abuse its

2 discretion in denying reopening, particularly as the

3 underlying adverse credibility determination also relied on

4 Singh’s demeanor and lack of responsiveness.

5 For the foregoing reasons, the petition for review is

6 DENIED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court