    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
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.

         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
                               4
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).
                             5
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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