    11-1671                                                                        BIA
    Lin v. Holder                                                         A088 996 422
                                                                          A088 996 423



                     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 15th day of August, two thousand twelve.

    PRESENT:
             ROBERT D. SACK,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    YUN ZHU LIN, HENG YOU RUAN,
             Petitioners,

                    v.                                     11-1671
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:              Theodore N. Cox, New York, NY.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Mary Jane Candaux,
                                  Assistant Director; Kiley L. Kane,
                                  Trial Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.

     Petitioners Yun Zhu Lin and Heng You Ruan, natives and
citizens of the People’s Republic of China, seek review of
an April 6, 2011 order of the BIA denying their motion to
reopen. In re Yun Zhu Lin & Heng You Ruan, Nos. A088 996
422/423 (B.I.A. Apr. 6, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.

     “We review the BIA’s denial of a motion to reopen for
abuse of discretion.” Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam) (citation omitted). Lin and Ruan
moved to reopen their removal proceedings, asserting that
their former counsel had been ineffective for failing to
file a brief on appeal to the BIA. The BIA denied
reopening, finding that Lin and Ruan failed to establish
that they suffered actual prejudice due to their counsel’s
actions and thus did not demonstrate ineffective assistance.
We find no abuse of discretion.

     To prevail on a claim of ineffective assistance, a
movant “must show that his counsel’s performance was so
ineffective as to have impinged upon the fundamental
fairness of the hearing in violation of the fifth amendment
due process clause.” Saleh v. U.S. Dep’t of Justice, 962
F.2d 234, 241 (2d Cir. 1992). To show a deprivation of
fundamental fairness, a movant must allege facts that
establish that “competent counsel would have acted
otherwise,” and that “he was prejudiced by his counsel’s
performance.” Id. (citing Esposito v. INS, 987 F.2d 108,
111 (2d Cir. 1993)) (internal quotation marks omitted). To
show actual prejudice, movants must establish prima facie
eligibility for the relief sought and demonstrate “that
[they] could have made a strong showing in support of
[their] application” but for their counsel’s ineffective
assistance. Id. at 882-83. Thus, to prevail on their
ineffective assistance claim, the petitioners were required
to demonstrate that the BIA would have reached a different
result in adjudicating their appeal had their prior counsel
filed an appellate brief. See Esposito, 987 F.2d at 111.



                             2
     Lin and Ruan argue that their appeal would have been
granted had counsel filed a brief. They claim that they
demonstrated prima facie eligibility for asylum because they
had a second child in the United States. Under China’s
family planning policy, sterilization is mandatory after the
birth of a second child, and sterilization is a form of
persecution.

     The petitioners failed to articulate what arguments
their former attorney could have raised that would have
changed the result of their case. See Esposito, 987 F.2d at
111. Specifically, in their motion to reopen, the
petitioners offered only conclusory assertions that they
were eligible for asylum based on the birth of their second
child in the United States. Standing alone, these
assertions are inadequate to demonstrate eligibility for
asylum, withholding of removal or CAT relief. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 164-66 (2d Cir. 2008)
(finding no error in the BIA’s conclusion that evidence
similar to that submitted by the petitioners was
insufficient to establish prima facie eligibility for
relief).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted is VACATED, and
the pending motion for a stay of removal is DENIED as moot.


                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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