06-5213-ag
Jiang v. Mukasey


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                    _____________________

                                        August Term, 2007
(Argued: February 6, 2008                                                Decided: March 27, 2008)
                                      Docket No. 06-5213-ag

                                    _____________________

                                          Changxu Jiang,
                                                                Petitioner,

                                                -v.-

                                      Michael B. Mukasey,*
                                                          Respondent.
                                   _______________________

BEFORE: CARDAMONE, B.D. PARKER, and HALL, Circuit Judges.

                                   _______________________

        Jiang petitions for review of a decision of the Board of Immigration Appeals (“BIA”)

dismissing his appeal of an immigration judge’s denial of his motion to reopen based on

ineffective assistance of counsel. Because Jiang’s decision to withdraw his application for

asylum and withholding of removal and to accept a grant of voluntary departure was a reasonable

strategic decision, we cannot say that counsel’s assistance was ineffective. We conclude,

therefore, that the BIA did not abuse its discretion in dismissing Jiang’s appeal. The petition for

review is DENIED.


        *
        Attorney General Michael B. Mukasey is substituted for former Attorney General
Alberto R. Gonzales pursuant to Fed. R. App. P. 43(c)(2).

                                                 1
                                   _______________________

               FREDERICK P.S. WHANG, Seattle, Washington, for Petitioner.

               J. MAX WEINTRAUB, Office of Immigration Litigation, Civil Division, U.S.
               Department of Justice (Peter D. Keisler, Assistant Attorney General, Carol
               Federighi, Senior Litigation Counsel, on the brief ), Washington, D.C., for
               Respondent.
                                  ________________________

PER CURIAM:

       Petitioner Changxu Jiang, a native and citizen of the People’s Republic of China, seeks

review of an October 13, 2006 order of the Board of Immigration Appeals (“BIA”) dismissing

his appeal of Immigration Judge Annette Elstein’s denial of his motion to reopen based on

ineffective assistance of counsel. In re Changxu Jiang, No. A 78 711 995 (B.I.A. Oct. 13, 2006),

aff’g No. A 78 711 995 (Immig. Ct. N.Y. City Dec. 6, 2005). The BIA determined that Jiang had

not made a showing of ineffective assistance because it found that Jiang’s decision to withdraw

his application for asylum and withholding of removal before the IJ was a tactical decision to

protect his current eligibility for an immigrant visa petition filed by his U.S. citizen wife. We

conclude that the BIA properly dismissed Jiang’s appeal, and we thus DENY the petition for

review.1



                                         BACKGROUND

       Changxu Jiang, a native and citizen of the People’s Republic of China, entered the United

States without inspection in January 2000. In September 2000, Jiang filed an application for


       1
        The Government filed a motion to dismiss Jiang’s petition to this Court as untimely.
The Government has since acknowledged in its brief that Jiang’s petition for review was timely,
and we deny the government’s motion to dismiss.

                                                 2
asylum and withholding of removal in which he alleged that his wife by traditional marriage had

died from a forced abortion and that the police had detained and abused him after he demanded

that the family planning office take responsibility for her death. In December 2001, Jiang was

served with a Notice to Appear that charged him with being removable pursuant to 8 U.S.C. §

1182(a)(6)(A)(i) as an alien present in the United States who has not been admitted or paroled.

       A. Immigration Court Hearings

       Jiang appeared with his former counsel, Barry Schneps, before Immigration Judge (“IJ”)

Elstein in January 2001. After adjourning the proceedings several times, the IJ heard the merits

of Jiang’s asylum and withholding claims in November 2003. Jiang testified that he would be

arrested if returned to China in part because the Chinese government had been made aware of

Jiang’s asylum application when the U.S. government allegedly breached his confidentiality by

contacting the Chinese government to verify the authenticity of documents relating to his claim.

During the course of the November 2003 hearing, the IJ voiced two principal concerns. She

questioned Jiang about the authenticity of certain documents because the government had

introduced evidence showing that they were falsified. Further, the IJ noted that there was

insufficient evidence to show that Jiang had filed his asylum application within the mandatory

one-year filing period. The hearing was adjourned to give Jiang the opportunity to address both

concerns.

       B. Withdrawal of Asylum Application and Request for Voluntary Departure

       When the hearing resumed, in June 2004, Jiang withdrew his application for asylum and

withholding with prejudice and thereafter sought only voluntary departure. In the course of these

proceedings, the IJ asked Jiang if he and his attorney had discussed the decision and whether


                                                3
Jiang understood that he could not renew his asylum claim at a later time. Jiang replied that he

understood the consequences and had discussed the decision with his attorney. The IJ permitted

Jiang to withdraw his asylum and withholding application and granted voluntary departure.

         C. Motion to Reopen

         Two months later, in August 2004, Jiang filed a motion to reopen based on the ineffective

assistance of his former counsel. He argued that he was “never made aware of the various

legitimate legal bases for pursuing his asylum claim, was never apprized [sic] of the blatant

nature of the violation of his confidentiality by the INS Guangzhou office and was instead urged

to withdraw his asylum application and to seek voluntary departure.” He contended that his

testimony before the IJ was sufficient to meet his burden to prove that he had timely filed his

asylum application. He also asserted that he was eligible for asylum based on his past

persecution and the Government’s breach of his confidentiality when investigating his asylum

claim.

         In April 2005, the IJ denied the motion, finding that Jiang “was not the victim of

ineffective assistance of counsel, but that he had a full and fair hearing,” after which Jiang

appeared to have decided “that the risks involved, given the serious and numerous legal questions

[at issue], did not warrant his proceeding.” The IJ noted that Jiang and his counsel had decided

to withdraw his “questionable” asylum claim to protect his eligibility for a visa petition filed by

his U.S. citizen wife.2 The IJ pointed out that Jiang’s claim was based on “birth control action

taken against a woman who was not his ‘spouse’” and that it involved documentation “found by



         2
        In 2003, while his removal proceedings were pending, Jiang had married a U.S. citizen
who later filed an I-130 petition on his behalf.

                                                  4
the Government to be fraudulent or at least seriously questionable.” Taken together with the

question about whether Jiang had filed his asylum application within one year, “which would

have limited [Jiang] to a much higher standard of proof than that required for asylum,” the IJ

concluded that these factors led to Jiang’s withdrawal of his asylum claim with prejudice.

       Jiang timely appealed to the BIA.

       D. BIA Dismissal of Jiang’s Appeal

       In October 2006, the BIA dismissed Jiang’s appeal of the IJ’s denial of his motion to

reopen, agreeing with the IJ that Jiang had not shown ineffective assistance of counsel. The BIA

determined that Jiang’s former counsel had “handled his case in a professional manner” and

correctly advised Jiang that if he were found to have made a frivolous asylum application, he

would have been barred from seeking any immigration benefits in the future. The BIA found that

Jiang had “opted for a particular strategy and form of relief, and although he might wish to fault

his attorney and recant that decision, he [was] nonetheless bound by it” because he had not

shown that his former attorney’s handling of his case had been “so egregious” that the

proceedings were rendered unfair. The BIA agreed with the IJ that Jiang’s decision to seek

voluntary departure had been a tactical decision to protect his eligibility for a visa petition filed

by his U.S. citizen wife. Further, the BIA noted that Jiang had “knowingly” agreed to abandon

his asylum application and to accept voluntary departure.

       Jiang now petitions this Court for review of the BIA’s order.




                                                   5
                                          DISCUSSION

       I. Standard of Review

       We review the BIA’s denial of a motion to reopen for abuse of discretion. Jian Hua

Wang v. BIA, 508 F.3d 710, 714 (2d Cir. 2007). An abuse of discretion may be found where the

BIA’s decision “provides no rational explanation, inexplicably departs from established policies,

is devoid of any reasoning, or contains only summary or conclusory statements; that is to say,

where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of

Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted). “Where the BIA adopts the decision

of the IJ and merely supplements the IJ’s decision . . . we review the decision of the IJ as

supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

       II. Applicable Law

       A motion to reopen premised on ineffective assistance of counsel must comply with the

requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),3 and establish that

“counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of

the hearing,” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (quoting

Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir. 1992)). To show fundamental

unfairness, the applicant must allege sufficient facts to show that competent counsel would have

acted otherwise and that the applicant was prejudiced by his counsel’s performance. Romero v.

INS, 399 F.3d 109, 112 (2d Cir. 2005). This Court “uses its own judgment as to whether

counsel was effective.” Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993).

       III. Ineffective Assistance of Counsel



       3
       Jiang’s compliance with Matter of Lozada is not at issue. The BIA accepted that Jiang
had complied with the requirements, and the Government does not dispute it here.

                                                 6
       The BIA did not abuse its discretion in dismissing Jiang’s appeal from the IJ’s denial of

his motion to reopen. The BIA properly determined that Jiang did not make a showing of

ineffective assistance of counsel because he did not establish that his prior counsel’s handling of

the case was so egregious that his hearing was rendered unfair. Rather, Jiang’s counsel’s advice

to withdraw the application for asylum and withholding of removal was a strategic decision to

pursue tactics that would preserve Jiang’s ability to obtain an immigrant visa through his U.S.

citizen wife.

       Jiang received a full and fair hearing at which questions arose as to the timeliness of his

asylum claim and evidence supporting it. By accepting voluntary departure under 8 U.S.C.

§ 1229c(a), Jiang stood to avoid the legal consequences of (1) leaving the United States under an

order of removal, and (2) a potential finding of a frivolous asylum application.4 Given Jiang’s

questionable asylum claim, which was based on a forced abortion performed on his putative wife

and substantiated by possibly fraudulent documentation relating to her death, together with

insufficient evidence to prove that Jiang filed his asylum application within the one-year filing

period, Jiang’s former attorney reasonably advised Jiang to withdraw his asylum claim in favor

of obtaining voluntary departure. We hold that recommending this sort of strategic decision does

not constitute ineffective assistance of counsel.

       In so ruling we join with the Ninth Circuit. When confronted with a similar issue, that

court held that where an attorney advises a client, as a tactical matter, to seek voluntary departure

rather than pursue other forms of relief, the proceedings remain fundamentally fair. Magallanes-


       4
         Jiang would have been inadmissible for ten years if he had left the United States under a
removal order. 8 U.S.C. § 1182(a)(9)(A)(ii)(I). Further, if his asylum application had been
found to be frivolous, he would have been permanently ineligible for benefits, which would have
eliminated altogether his opportunity to obtain a visa through his U.S. citizen wife. 8 U.S.C.
§ 1158(d)(6).

                                                    7
Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986). There, the petitioners’ attorney conceded

deportability in order to obtain an extended voluntary departure period based on the attorney’s

judgment that pending amnesty legislation would allow petitioners to become lawful permanent

residents before the voluntary departure period expired. Id. at 933-34. The Ninth Circuit

concluded, as we do here, that the attorney’s decision, even if unwise in hindsight, was a tactical

decision that did not constitute ineffective assistance. Id. (“It is not unusual or egregious for

counsel to make tactical decisions that ultimately fizzle and redound to the client’s detriment.”

(quoting LeBlanc v. INS, 715 F.2d 685, 694 (1st Cir. 1983))).

       Jiang argues that competent counsel would have handled his asylum claim differently.5

For the reasons already discussed, the record does not compel a finding that competent counsel

would have acted differently given Jiang’s questionable asylum claim and his pending visa

petition. Jiang also asserts that the United States Government negligently breached his

confidentiality by providing the Chinese government with a document from which it could

reasonably be inferred that he was seeking asylum in the United States, thereby exposing him to

new risks which may now render him eligible for asylum. Like his other arguments relating to

his asylum claim, however, Jiang chose to abandon this issue when he withdrew his asylum

application and sought voluntary departure.

                                          CONCLUSION

       For the foregoing reasons, we DENY the Government’s motion to dismiss the petition,

and we DENY the petition for review.


       5
         In his brief, Jiang argues that his former attorney provided ineffective assistance of
counsel and he cites several examples of how his attorney could have handled his case
differently. These contentions, however, are essentially mooted by Jiang’s knowing and
voluntary decision to abandon his asylum claim, which we have determined proceeded from
reasonable, strategic advice given by his counsel.

                                                  8
