         11-132 (L)
         Zhang v. Holder


                            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 13th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       CHUNZI ZHANG, AKA YOUNG-IM BANG,
14                Petitioner,
15
16                         v.                                   11-132 (L)
17                                                              11-4514 (Con)
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Jay Ho Lee, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Holly M. Smith,
28                                     Senior Litigation Counsel; Edward C.
29                                     Durant, Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
34
 1       UPON DUE CONSIDERATION of these petitions for review of

 2   decisions of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review in U.S.C.A. Dtk. No. 11-132 (L) is DISMISSED and the

 5   petition for review in U.S.C.A. Dkt. No. 11-4514 (Con) is

 6   DENIED.

 7       Petitioner Chunzi Zhang, a native and citizen of China,

 8   seeks review of a December 14, 2010, order of the BIA,

 9   affirming the January 16, 2009, decision of an Immigration

10   Judge (“IJ”), which denied her application for asylum,

11   withholding of removal, and relief under the Convention

12   Against Torture (“CAT”), In re Chunzi Zhang, No. A089 255

13   681 (B.I.A. Dec. 14, 2010), aff’g No. A089 255 681 (Immig.

14   Ct. N.Y. City Jan. 16, 2009), and a September 29, 2011,

15   decision of the BIA denying her motion to reopen her removal

16   proceedings, In re Chunzi Zhang, No. A089 255 681 (B.I.A.

17   Sept. 29, 2011).   We assume the parties’ familiarity with

18   the underlying facts and procedural history in this case.

19       As an initial matter, we note that Zhang has withdrawn

20   her challenge to the BIA’s 2010 decision.

21       In her motion to reopen, Zhang alleged ineffective

22   assistance of her former counsel.   We review the BIA’s

23   denial of a motion to reopen for abuse of discretion.     See


                                   2
 1   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per

 2   curiam).   To prevail on a claim of ineffective assistance of

 3   counsel, a movant must show that competent counsel would

 4   have acted otherwise, and that she was prejudiced by her

 5   counsel’s performance.   See Rabiu v. INS, 41 F.3d 879,

 6   882-83 (2d Cir. 1994); Esposito v. INS, 987 F.2d 108, 111

 7   (2d Cir. 1993) (per curiam).

 8       The BIA did not abuse its discretion in finding that

 9   she was not prejudiced by her counsel’s performance.      See Ke

10   Zhen Zhao v. DOJ, 265 F.3d 83, 93 (2d Cir. 2001).      As the

11   BIA noted, Zhang was not prejudiced by her counsel’s failure

12   to include in her asylum application the alleged abuse she

13   suffered in detention, because Zhang omitted the very same

14   information from her handwritten application statement.         See

15   Rabiu, 41 F.3d at 882.   While Zhang argues that she prepared

16   her statement while being represented by her former counsel,

17   and explains that she had omitted this information because

18   she thought she could nevertheless testify to these events,

19   the BIA was not required to credit her explanation given the

20   IJ’s explicit instruction that she could be found not

21   credible on the basis of inconsistencies between her

22   application statement and testimony.   Cf. Majidi v.

23   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an


                                    3
 1   agency need not credit an applicant’s explanations for

 2   inconsistencies in the record unless those explanations

 3   would compel a reasonable fact-finder to do so).   Because

 4   Zhang stated that her handwritten statement was true and

 5   correct, and declined to make any additions following the

 6   IJ’s instruction, a reasonable fact-finder would not be

 7   compelled to credit her explanation.   See id.

 8       Similarly, the BIA did not abuse its discretion in

 9   finding that Zhang was not prejudiced by her counsel’s

10   failure to solicit a corroborative letter from her husband

11   in China.   As the BIA noted, Zhang’s failure to submit this

12   evidence was not the sole basis for the agency’s adverse

13   credibility determination, which was otherwise supported by

14   her demeanor and the omission from her handwritten statement

15   of the alleged abuse she suffered in detention.    See 8

16   U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.

17   Mukasey, 534 F.3d 162, 166, n.3 (2d Cir. 2008)(providing

18   that, for purposes of analyzing a credibility determination,

19   “[a]n inconsistency and an omission are . . . functionally

20   equivalent”).

21       Contrary to Zhang’s assertion, the BIA did not abuse

22   its discretion by finding that her halting demeanor was not

23   the result of her counsel’s failure to notify the IJ that

                                   4
 1   her best language was Korean rather than Mandarin.     See

 2   Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)

 3   (noting that “support for a contrary inference-even one more

 4   plausible or more natural-does not suggest error”).    While

 5   Zhang argues that her perceived halting demeanor was the

 6   result of her difficulty with Mandarin, the BIA reasonably

 7   found her assertion unsupported by the record, because the

 8   transcripts did not show that she had any difficulty

 9   understanding and responding to questions in Mandarin.       See

10   Majidi, 430 F.3d at 80-81; see also Siewe, 480 F.3d at

11   168-69 (noting that where, as here, the agency’s inference

12   “is tethered to the evidentiary record, we will accord

13   deference to the finding”).

14       Lastly, Zhang’s contention that the BIA ignored her

15   counsel’s improper relationship with an immigration services

16   agency is misplaced.   See Zhi Yun Gao v. Mukasey, 508 F.3d

17   86, 87 (2d Cir. 2007)(noting that the agency is not required

18   to expressly “parse or refute on the record each individual

19   argument or piece of evidence offered by the petitioner”

20   (internal quotation marks omitted)).   Although Zhang argues

21   that her attorney provided ineffective assistance by aiding

22   in the unauthorized practice of law and splitting fees with

23   a non-attorney, she was required to show that this conduct

                                   5
 1   caused her actual prejudice.    See Rabiu, 41 F.3d at 882.

 2   Because the BIA reasonably concluded that Zhang was found

 3   not credible on the basis of her own actions, rather than as

 4   a result of her attorney’s deficient performance, the record

 5   does not compellingly indicate that the BIA ignored her

 6   argument.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 7   F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

 8   “has taken into account all of the evidence before [it],

 9   unless the record compellingly suggests otherwise”).

10       For the foregoing reasons, the petition for review in

11   U.S.C.A. Dkt. No. 11-132 (L) is DISMISSED and the petition

12   for review in U.S.C.A. Dkt. No. 11-4514 (Con) is DENIED.       As

13   we have completed our review, Zhang’s pending motion for a

14   stay of removal is DENIED as moot.    Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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