         10-3728-ag (L)
         Samad v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A098 423 145
                            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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of February, two thousand twelve.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _____________________________________
12
13       SHEIKH HASSAN SAMAD,
14                Petitioner,
15
16                         v.                                   10-3728-ag (L);
17                                                              11-1248-ag (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Thomas V. Massucci, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Linda S. Wernery, Assistant
29                                     Director; Theodore C. Hirt, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States Department
32                                     of Justice, Washington, D.C.
 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

 4   is DENIED.

 5       Petitioner Sheikh Hassan Samad, a native and citizen of

 6   Pakistan, seeks review of a March 14, 2011 decision of the

 7   BIA, denying his motion to reopen his removal proceedings.

 8   In re Sheikh Hassan Samad, No. A098 423 145 (B.I.A. Mar. 14,

 9   2011).   He also seeks review of an August 25, 2010 order of

10   the BIA, affirming the March 23, 2009 decision of

11   Immigration Judge (“IJ”) George T. Chew, which denied his

12   application for asylum, withholding of removal, and relief

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

14   Hassan Samad, No. A098 423 145 (B.I.A. Aug. 25, 2010), aff’g

15   No. A098 423 145 (Immig. Ct. N.Y. City Mar. 23, 2009).      We

16   assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales,

20   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

21   of review are well established.     See 8 U.S.C.

22   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

23   (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

24   2005) (per curiam).

                                   2
 1       In finding Samad not credible, the agency reasonably

 2   relied on his previous filing of a fraudulent asylum

 3   application in Canada under a false name, as well as the

 4   fact that he applied for and received public assistance in

 5   Canada under both his true name and alias.     Although Samad

 6   later admitted to the fraudulent filing before the IJ, he

 7   failed to disclose this fact in his asylum application.     See

 8   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir.

 9   2008); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d

10   Cir. 2007).

11       Having found Samad not credible, the agency reasonably

12   noted that his failure to provide additional corroborative

13   evidence further undermined his credibility.     See 8 U.S.C.

14   § 1158(b)(1)(B)(ii).   Although Samad argues that the agency

15   improperly “conflat[ed] corroboration with credibility,” we

16   have recognized that an applicant’s failure to corroborate

17   his or her testimony may bear on credibility, either because

18   the absence of particular corroborating evidence is viewed

19   as suspicious, or because the absence of corroboration in

20   general makes an applicant unable to rehabilitate testimony

21   that has already been called into question.     See Biao Yang

22   v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).


                                   3
 1   Here, because Samad’s credibility had already been called

 2   into question, the agency reasonably relied on Samad’s

 3   failure to provide additional corroborating evidence, such

 4   as medical records from his and his brother’s beatings,

 5   which allegedly resulted in three and five day hospital

 6   stays respectively.

 7       Because the agency’s adverse credibility determination

 8   is otherwise supported by substantial evidence, even if we

 9   were to credit Samad’s assertion that the inconsistency in

10   the record concerning the date of his brother’s beating was

11   a result of his counsels’ errors, remand would not be

12   necessary.   See Ramsameachire v. Ashcroft, 357 F.3d 169, 182

13   n.3 (2d Cir. 2004).   Similarly, because the agency’s adverse

14   credibility determination is a valid alternative basis for

15   the denial of asylum, we decline to reach Samad’s claim that

16   the untimely filing of his asylum application was the result

17   of his counsels’ ineffective assistance.   Even assuming that

18   Samad is correct, he is unable to show that he was

19   prejudiced as a result of his counsels’ errors, as the

20   agency found that he was not eligible for a grant of asylum

21   due to his lack of credibility, even if his application had

22   been timely filed.    See Rabiu v. INS, 41 F.3d 879, 882-83

23   (2d Cir. 1994).

                                    4
 1       Lastly, the BIA did not abuse its discretion in denying

 2   Samad’s motion to reopen his removal proceedings.     In order

 3   to prevail on a claim of ineffective assistance of counsel,

 4   a movant must show that competent counsel would have acted

 5   otherwise, and that he was prejudiced by his counsels’

 6   performance.   See Rabiu, 41 F.3d at 882-83; Esposito v. INS,

 7   987 F.2d 108, 111 (2d Cir. 1993).     “[T]o show that his

 8   attorneys[’] failure to file caused him actual prejudice,

 9   [Samad] must make a prima facie showing that he would have

10   been eligible for the relief and that he could have made a

11   strong showing in support of his application.”     Rabiu, 41

12   F.3d at 882.   Here, the denial of the motion to reopen was

13   not an abuse of discretion because, as the BIA noted, even

14   taking Samad’s allegations concerning his counsels’

15   deficient performance as true, he failed to show that he was

16   prima facie eligible for a grant of asylum in light of the

17   agency’s underlying adverse credibility determination.

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot.     Any pending request for

23   oral argument in this petition is DENIED in accordance with
                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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