                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 1, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 KULWINDER SINGH RAJU,

              Petitioner-Appellant,

 v.                                                      No. 10-9525
                                               (Board of Immigration Appeals)
 ERIC H. HOLDER, JR., United States
 Attorney General,

              Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **



      Kulwinder Singh Raju, a native and citizen of India, seeks review of the

Bureau of Immigration Appeals’ (BIA) denial of his motion to reopen his

immigration proceedings. For the following reasons, we deny the petition for

review.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Raju entered the United States in 2002 without proper admission or parole

and was placed in removal proceedings. After conceding removability, he

requested asylum, restriction on removal, and protection under the Convention

Against Torture (CAT).

      In 2007, at his removal hearing, Raju testified that in October 2001 he was

forced at gunpoint to give material support to Sikh militants. The Indian police

arrested him, accused him of being involved with militants, and beat him with a

belt and metal-tipped staff that caused him to bleed and become unconscious. In

November 2001, Raju again provided material support to the militants under

threat of harm and then fled to avoid arrest.

      The immigration judge (IJ) found inconsistencies in Raju’s testimony and

made an adverse credibility finding. Specifically, the IJ found three areas of

Raju’s testimony inconsistent. First, Raju testified the severe beating he received

required an operation to drain fluid from his back and produced a significant scar.

But at his removal hearing the IJ observed Raju’s back and found no scars, which

the IJ believed the alleged beating would have left. Second, Raju gave

inconsistent statements regarding the number of his siblings. He initially testified

to having only one brother and no other siblings, but later stated he had five

siblings. Finally, Raju gave varying testimony concerning his route to the United

States. He initially testified to traveling through Ecuador, Guatemala, and then

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Mexico, but later included Malaysia and Cuba. On cross-examination, he stated

he traveled through Russia, Cuba, Ecuador, Guatemala, and then Mexico before

entering the United States. In light of these inconsistencies, the IJ denied Raju’s

asylum petition and ordered him removed to India.

         Raju appealed to the BIA and argued the adverse credibility finding was

error because any inconsistencies in his testimony related to incidental matters

not at the heart of his claims. The BIA rejected Raju’s argument and affirmed the

IJ’s decision. Raju appealed to this court and again argued the IJ improperly

discredited his testimony based on incidental inconsistencies. We rejected his

argument and denied his petition for review. See Raju v. Holder, 336 F. App’x

814, 819 (10th Cir. 2009).

         Raju filed a motion to reopen his proceedings before the BIA, asserting a

claim of ineffective assistance of counsel on the basis his counsel failed to submit

certain evidence and witness testimony. Specifically, Raju asserts his counsel

failed to (1) call his brother, Sodhi Singh, to offer corroborating testimony, (2)

offer Raju’s passport as evidence, and (3) secure statements from individuals in

India.

         The BIA determined Raju had not shown prejudice as a result of his

counsel’s actions in the removal proceedings. First, the BIA found Sodhi’s

testimony related to persecution he suffered in 1993 in India that would not have

corroborated Raju’s testimony regarding his persecution in 2001. Additionally,

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Sodhi stated he was forced to leave India and did not claim to have been in India

in 2001.

      Next, Raju submitted a copy of his passport with his motion to reopen. The

BIA examined the passport and found only one stamp, from Ecuador,

corresponding to the time frame during which Raju claims to have traveled to the

United States. The passport added no new information that would assist in

reconciling Raju’s inconsistent testimony regarding the countries he passed

through.

      Finally, Raju failed to identify specific statements from individuals in India

that his counsel should have offered as evidence. He also did not explain to the

BIA how the statements would corroborate his claims.

      The BIA concluded Raju failed to offer any new evidence that would

overcome the IJ’s adverse credibility determination. Finding Raju failed to

demonstrate any prejudice suffered as a result of ineffective assistance, the BIA

denied his motion to reopen.

                                  II. Discussion

      We have jurisdiction to review the denial of a motion to reopen and our

review is for abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th

Cir. 2004). We will reverse the BIA only “when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Id. The BIA

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does not abuse its discretion when its “decision is succinct, its rationale is clear,

there is no departure from established policies, and its statements are a correct

interpretation of the law.” Id.

      Removal proceedings are civil in nature and therefore a claim for

ineffective assistance of counsel arises only from the due process guarantees of

the Fifth Amendment. See Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir.

1999). To succeed on a claim of ineffective assistance of counsel, an alien must

demonstrate he suffered prejudice as a consequence of the ineffective assistance.

See id. (“[A]n alien must show that his counsel’s ineffective assistance so

prejudiced him that the proceeding was fundamentally unfair.”).

      At the outset, it is not clear from Raju’s brief that he argues the BIA abused

its discretion. He argues the IJ’s adverse credibility determination resulted from

the alleged ineffective assistance of counsel, which, if true, could be a basis for

showing prejudice. To the extent Raju challenges the BIA’s determination, we

find the BIA did not abuse its discretion because Raju has failed to demonstrate

he suffered any prejudice from his counsel’s allegedly ineffective assistance.

      Raju’s counsel made the tactical decision not to call Sodhi as a witness

because she believed his testimony would harm Raju’s case. In another tactical

decision, Raju’s counsel decided not to offer statements from individuals in India

because she believed they were fraudulent. These tactical decisions were all

within the realm of sound strategy. Finally, his counsel stated she was never

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given Raju’s passport, his asylum application indicated he had no passport, and

the passport does not contain any information that would resolve Raju’s

inconsistent testimony regarding his route to the United States.

      Raju has failed to demonstrate the evidence and testimony he contends his

counsel should have offered would have materially affected the IJ’s adverse

credibility determination. Thus, Raju has not shown he suffered prejudice from

the omission of this evidence. He also has failed to explain how the BIA abused

its discretion when it determined he suffered no prejudice from any alleged

ineffective assistance of counsel.

                                     III. Conclusion

      For these reasons, the BIA did not abuse its discretion when it denied

Raju’s motion to reopen. The petition for review is denied.

                                                       Entered for the Court,

                                                       Timothy M. Tymkovich
                                                       Circuit Judge




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