     17-830
     Singh v. Whitaker
                                                                                  BIA
                                                                            Loprest, IJ
                                                                          A205 409 335
                              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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 28th day of November, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            GERARD E. LYNCH,
 9            DENNY CHIN,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   LAKHBIR SINGH,
15            Petitioner,
16
17                       v.                                      17-830
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Usman B. Ahmad, Long Island City,
25                                       NY.
26
27   FOR RESPONDENT:                     Chad A. Readler, Principal Deputy
28                                       Assistant Attorney General;
29                                       Melissa Neiman-Kelting, Assistant
30                                       Director; Allison Frayer, Trial
31                                       Attorney, Office of Immigration
32                                       Litigation, United States
1                                  Department of Justice, Washington,
2                                  DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

6    ORDERED, ADJUDGED, AND DECREED that the petition for review

7    is DENIED.

8        Petitioner Lakhbir Singh, a native and citizen of India,

9    seeks review of a February 28, 2017, decision of the BIA

10   affirming a May 12, 2016, decision of an Immigration Judge

11   (“IJ”)   denying    Singh’s   motion   to   reopen   his   removal

12   proceedings.    In re Lakhbir Singh, No. A 205 409 335 (B.I.A.

13   Feb. 28, 2017), aff’g No. A 205 409 335 (Immig. Ct. N.Y. City

14   May 12, 2016).     We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16       We have reviewed the decision of the IJ as supplemented

17   by the BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

18   Cir. 2005).    We review the BIA’s denial of Singh’s motion to

19   reopen for abuse of discretion.        Ali v. Gonzales, 448 F.3d

20   515, 517 (2d Cir. 2006).      To state an ineffective assistance

21   of counsel claim, the movant must establish, inter alia,

22   (1) deficient representation; and (2) prejudice as a result

                                      2
1    of that deficiency.           Rashid v. Mukasey, 533 F.3d 127, 130-31

2    (2d Cir. 2008).

3           The only issue is whether Singh showed the requisite

4    prejudice.          A movant seeking to reopen proceedings based on

5    ineffective assistance must show that “counsel’s performance

6    was so ineffective as to have impinged upon the fundamental

7    fairness       of    the   hearing”     and   that   the    movant      suffered

8    prejudice from it.           Changxu Jiang v. Mukasey, 522 F.3d 266,

9    270 (2d Cir. 2008) (per curiam)(quoting Jian Yun Zheng v.

10   U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)); see

11   also Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010)

12   (per curiam).           To establish the requisite prejudice, the

13   movant must show that the outcome of the proceeding would

14   have    been    different      had    counsel   acted      more   effectively.

15   Debeatham, 602 F.3d at 486.

16          The   agency        reasonably    determined     that      the    adverse

17   credibility determination could not be solely attributed to

18   lack of preparation by Singh’s previous counsel.                        Mainly,

19   Singh failed to resolve a central discrepancy regarding his

20   reasons for joining the Congress Party — whether he joined

21   voluntarily or was coerced — that gave rise to (a) internal
                                              3
1    inconsistencies in his testimony, (b) inconsistencies between

2    his   testimony   and   credible   fear   interview,   and   (c)

3    significant inconsistency among his testimony, application,

4    and documentary evidence.   Singh testified that the Congress

5    Party did good work and that he joined because his grandfather

6    and father were members.    And he stated in his credible fear

7    interview that he had always supported the Congress Party.

8    But when asked on redirect to explain other statements (in

9    his application and corroborating documents) that he joined

10   to stem harassment from Congress Party members, he did not

11   renounce the written statements; instead, he altered his

12   testimony to say that members of the Congress Party used to

13   harass him, that the harassment stopped when he joined the

14   party, and that he “started liking the party out of fear.”

15         Singh argues that his prior counsel failed to consult

16   him when drafting the written statement that accompanied

17   his asylum application and to review with him the finalized

18   written statement and his medical records and family’s

19   affidavits, which caused him to be surprised by their

20   contents during the hearing.   He also contends that the

21   agency failed to recognize that his testimony at the
                                    4
1    credible fear interview was substantially similar to his

2    testimony at the merits hearing and that any

3    inconsistencies arose only when he was confronted with the

4    documents his attorney had prepared.   As the agency

5    reasonably found, however, Singh never explained why, when

6    confronted with his statements and record evidence, he

7    adopted their contents rather than explain the

8    discrepancies.    See Jian Hui Shao v. Mukasey, 546 F.3d 138,

9    157 (2d Cir. 2008) (according substantial deference to the

10   agency’s findings of fact and “assessment of competing

11   evidence”).   Although Singh submitted a personal affidavit

12   explaining that his prior attorney instructed his family

13   members to sign letters prepared in English and that they

14   did not know what they were signing, he did not identify

15   what the inaccuracies were.   Finally, Singh did not submit

16   an updated application statement or letters from his family

17   members to clarify what portions of the statements were

18   incorrect.    See 8 C.F.R. § 1003.2(c)(1) (requiring motions

19   to reopen to be supported by evidentiary material).

20   Because Singh did not fully explain why his inconsistent

21   testimony was the fault of his prior attorney or document
                                    5
1   what information was correct, the agency did not abuse its

2   discretion in denying reopening, particularly as the

3   underlying adverse credibility determination also relied on

4   Singh’s demeanor and lack of responsiveness.

5       For the foregoing reasons, the petition for review is

6   DENIED.

7                              FOR THE COURT:
8                              Catherine O’Hagan Wolfe,
9                              Clerk of Court




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