     16-407
     Khemlall v. Sessions
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A078 411 215

                             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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            ROSEMARY S. POOLER,
 8            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HARISCHANDRA KHEMLALL,
14            Petitioner,
15
16                      v.                                           16-407
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Kai W. De Graaf, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General, John S.
27                                       Hogan, Assistant Director, Robbin K.
28                                       Blaya, Attorney, Office of
29                                       Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Harischandra Khemlall, a native and citizen of

6    Guyana, seeks review of a February 1, 2016, decision of the BIA

7    affirming both a May 12, 2015, decision of an Immigration Judge

8    (“IJ”) denying Khemlall’s motion to reopen for ineffective

9    assistance of counsel and a May 17, 2013, decision denying

10   Khemlall’s application for withholding of removal and relief

11   under    the   Convention   Against   Torture   (“CAT”).   In   re

12   Harischandra Khemlall, No. A078 411 215 (B.I.A. Feb. 1, 2016),

13   aff’g No. A078 411 215 (Immig. Ct. N.Y. City May 17, 2013 and

14   May 12, 2015).     We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       Under the circumstances of this case, we have reviewed the

17   IJ’s decision as modified by the BIA, i.e., minus the adverse

18   credibility ruling that the BIA declined to reach.    See Xue Hong

19   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

20       I.     Ineffective Assistance of Counsel

21       An alien seeking to reopen proceedings on the basis of

22   ineffective assistance of counsel must show that counsel’s

23   performance was “so ineffective as to have impinged upon the
                                      2
1    fundamental fairness of the hearing” and caused prejudice.

2    Changxu Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008)

3    (quoting Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,

4    46 (2d Cir. 2005)); see also Debeatham v. Holder, 602 F.3d 481,

5    485 (2d Cir. 2010).       We find no abuse of discretion in the

6    agency’s decision not to reopen proceedings based on

7    ineffective assistance of counsel.          See Debeatham, 602 F.3d at

8    484 (applying abuse of discretion standard of review).

9        As     the   agency   found,     counsel’s   performance     was   not

10   deficient.       First, the agency reasonably concluded that the

11   adverse credibility determination regarding Khemlall and his

12   mother could not be attributed to lack of preparation by

13   counsel.    For example, Khemlall’s statement under oath that he

14   was deported to Guyana in 2000 conflicted with record evidence

15   that he was deported to Trinidad and Tobago.                Khemlall’s

16   assertion    that    he   informed    his   counsel   of   the   correct

17   information was contradicted by his counsel’s testimony.               It

18   was not an abuse of discretion for the agency to credit the

19   attorney’s testimony, particularly given that Khemlall did not

20   confess to the deportation to Trinidad and Tobago until

21   confronted on cross-examination.         See Jian Hui Shao v. Mukasey,

22   546 F.3d 138, 157 (2d Cir. 2008) (according substantial

23   deference to the agency’s findings of fact and “assessment of
                                          3
1    competing evidence”).      Similarly, Khemlall claimed that he

2    sought asylum and went before an IJ in 2000.           But, as the agency

3    found,   those   allegations   are       belied   by    the    immigration

4    officer’s notes from 2000 and no amount of preparation by

5    previous counsel could have resolved this inconsistency because

6    Khemlall continues to assert a different version of events than

7    what is shown by the record.

8        The agency also reasonably determined that Khemlall’s

9    failure to produce evidence of his identity was not the fault

10   of counsel.   There was a dispute of fact: Khemlall argued that

11   his attorney had his identity documents and failed to turn them

12   over to the IJ, but his attorney testified to the contrary,

13   stating that Khemlall had told him the documents were lost.               The

14   agency’s   decision   to   credit       the   attorney’s      testimony    is

15   supported by the record given Khemlall’s testimony during the

16   original merits hearing that he did not know where his passport

17   was and his statement during his reasonable fear interview that

18   he lost it.

19       Counsel’s failure to raise a domestic violence claim was

20   not deficient performance because a strategic decision not to

21   press a weaker claim is reasonable.           Cf. Jones v. Barnes, 463

22   U.S. 745, 754 (1983) (defense counsel not required to “raise

23   every ‘colorable’ claim suggested by a client”).                   Counsel
                                         4
1    testified that a claim based on the 32-year-old Khemlall’s fear

2    of his father due to abuse that Khemlall experienced as a child

3    would have stretched credibility.    See Romero v. U.S. INS, 399

4    F.3d 109, 112–13 (2d Cir. 2005) (holding that counsel’s decision

5    to omit issue that may have hurt applicant’s credibility is not

6    ineffective assistance).

7        Nor did the agency err in rejecting Khemlall’s argument

8    that counsel submitted insufficient documentation and was

9    inadequately versed in immigration law.     The record included

10   nine years of country reports on the conditions in Guyana, as

11   well as numerous articles covering incidents of violence.

12   Khemlall focuses on counsel’s failure to gather and submit

13   evidence in support of a domestic violence claim, but as

14   explained above, the decision to forgo that claim did not

15   constitute ineffective assistance.

16       Finally, the agency reasonably determined that Khemlall

17   failed to demonstrate any prejudice as a result of counsel’s

18   actions.   Khemlall does not explain how the result in his case

19   would have changed if counsel had acted differently or made

20   different decisions.   See Debeatham, 602 F.3d at 485 (“[A]n

21   alien claiming ineffective assistance of counsel must also show

22   prejudice resulting from counsel’s alleged deficiencies.”).

23   The bond motions could not have changed the outcome because they
                                    5
1    were independent of the merits proceedings.          And Khemlall has

2    not shown that his domestic violence claim would have fared

3    better than the claims presented by counsel, particularly given

4    that Khemlall is an adult and suffered violence from his father

5    as a child.   Khemlall’s own expert could not say definitively

6    that such a claim would have been successful, and the passage

7    of   time   weighs     against   Khemlall   having   an   objectively

8    reasonable fear of his father.

9         Khemlall also argues that the agency erred in refusing to

10   consider the merits of his domestic violence claim, regardless

11   of its denial of his ineffective assistance of counsel claim.

12   Khemlall misunderstands the standard applicable to his motion

13   to reopen.    Absent ineffective assistance, his domestic

14   violence claim did not meet the standard for reopening because

15   the claim was available and could have been presented in the

16   initial proceeding before the IJ.       An applicant seeking to

17   reopen his case bears a “heavy burden” of presenting “previously

18   unavailable, material evidence” that “would likely change the

19   result in the case.”       Matter of Coelho, 20 I. & N. Dec. 464,

20   472-73 (BIA 1992); see also 8 C.F.R. §§ 1003.2(c)(1),

21   1003.23(b)(3).       Khemlall cites to a phrase in the BIA’s remand

22   order that the IJ was to consider “evidence related to

23   [Khemlall’s] application for relief,” as proof that the IJ was
                                        6
1    required to consider the merits of his domestic violence claim.

2    But the BIA remanded for consideration of ineffective

3    assistance as a prerequisite to granting reopening, not for

4    immediate consideration of claims that could only be brought

5    if proceedings were reopened.

6        II. Withholding of Removal and CAT Relief

7        We find no error in the agency’s denial of withholding of

8    removal and CAT relief.   The agency reasonably determined that

9    Khemlall was not subject to past persecution in Guyana.

10   Khemlall asserted only harassment and one incident in which he

11   was hit by a bottle.   Khemlall failed to provide evidence that

12   his injury was serious or that it required any medical

13   treatment.    Accordingly, as the agency found, the past harm

14   suffered did not rise to the level of persecution.   Ivanishvili

15   v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)

16   (persecution involves the “infliction of suffering or harm”

17   that goes beyond “mere harassment”).

18       Nor did he show a well-founded fear of future harm or

19   torture.     Although the country reports and articles reflect

20   violence in Guyana, the violence described is not politically

21   motivated, and Khemlall submitted no evidence showing that he

22   personally would be targeted on return to Guyana.      Jian Xing

23   Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (fear of
                                     7
1    future persecution must have “solid support in the record”);

2    Vanegas-Ramirez v. Holder, 768 F.3d 226, 239 (2d Cir. 2014)

3    (testimony must be “factually specific” to support a fear of

4    future persecution) (internal quotation marks omitted); see

5    also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 158

6    (2d Cir. 2005) (requiring “particularized evidence suggesting

7    that [applicant] is likely to be subjected to torture”).

8    Instead, Khemlall testified that his party is the ruling party

9    in Guyana and that it is working to improve racial tensions,

10   undermining his claim that he would be persecuted or tortured

11   for his support of the party.

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                               FOR THE COURT:
15                               Catherine O=Hagan Wolfe, Clerk




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