Opinion
18-2636 NAC
09-03-2020
LOVEPREET SINGH, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Anas J. Ahmed, Esq., Pannun the Firm, P.C., Jackson Heights, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Linda S. Wernery, Assistant Director; Steven K. Uejio, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of September, two thousand twenty. PRESENT: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges.
FOR PETITIONER:
Anas J. Ahmed, Esq., Pannun the Firm, P.C., Jackson Heights, NY.
FOR RESPONDENT:
Joseph H. Hunt, Assistant Attorney General; Linda S. Wernery, Assistant Director; Steven K. Uejio, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Lovepreet Singh, a native and citizen of India, seeks review of an August 1, 2018 decision of the BIA affirming a September 26, 2017 decision of an Immigration Judge ("IJ") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Lovepreet Singh, No. A 200 238 968 (B.I.A. Aug. 1, 2018), aff'g No. A 200 238 968 (Immig. Ct. N.Y.C. Sept. 26, 2017). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as supplemented by the BIA. See Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009) (reviewing factual findings underlying burden of proof determinations for substantial evidence); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing application of law to undisputed fact de novo).
I. Ineffective Assistance of Counsel
The BIA did not err in denying Singh's ineffective assistance of counsel claim. To prevail on an ineffective assistance claim, an alien must substantially comply with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46-47 (2d Cir. 2005). Lozada requires:
(1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005). The BIA imposes these requirements as "a basis for determining whether the assistance provided by counsel was, in fact, ineffective," and "to deter meritless claims." Piranej v. Mukasey, 516 F.3d 137, 141-42 (2d Cir. 2008) (internal quotation marks omitted). We do not require "slavish adherence" to the requirements, Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007), but failure "to comply substantially with the Lozada requirements" constitutes forfeiture of the ineffective assistance claim, see Jian Yun Zheng, 409 F.3d at 47.
Singh argued that his prior counsel was ineffective in failing to timely file his asylum application and submit certain documents. But he did not comply with any of the procedural requirements set forth in Lozada. Further, he alleged that he gave his attorney letters from his father, mother, and grandfather, and that his attorney failed to file these documents, but he did not produce the documents on appeal. Accordingly, the BIA properly dismissed his ineffective assistance of counsel claim. See Jian Yun Zheng, 409 F.3d at 47.
II. Burden of Proof and Corroboration
The agency also did not err in finding that Singh failed to satisfy his burden of proof.
"The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii); see also Chuilu Liu, 575 F.3d at 196-97. "In determining whether the applicant has met [his] burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii). "No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable." Id. § 1252(b)(4).
Singh testified that he was twice attacked and beaten by members of the Congress Party on account of his activities in support of the Akali Dal Mann Party ("Mann Party"). The IJ reasonably required corroborating evidence given Singh's general and unspecific testimony about his experiences in India. See id. § 1158(b)(1)(B)(ii). The record supports the IJ's conclusion that Singh's testimony was general and vague. For example, when asked on direct examination what he did for the party, Singh testified generally that he would attend rallies, serve refreshments, hang up posters, and do what "they would assign to" him. Certified Administrative Record at 95. He elaborated only slightly when twice asked to expand. His descriptions of his two alleged beatings, which he claimed were severe enough to require medical attention, were similarly general. Thus, the agency did not err in requiring reasonably available corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-97.
Having determined that corroboration was needed, the IJ properly identified the missing evidence, which was reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-97. Singh testified that his family members also were involved in the Mann Party, that family members and neighbors witnessed the second beating, and that family members brought him for medical treatment after that attack, but he did not submit any corroborating letters from them.
Singh did not show that this evidence was unavailable. Specifically, when asked why he did not have a letter or testimony from his brother in the United States or a letter from his uncle with whom he hid after the second attack, he said that he did not think such evidence was important. The IJ was not compelled to accept these explanations given that Singh's brother and uncle were key witnesses to facts that were central to the alleged persecution. See 8 U.S.C. § 1252(b)(4) ("No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable."). As for letters from his father, mother, and grandfather, Singh said he had provided these and medical records to his attorney, but neither the letters nor the medical evidence were submitted to the agency. The remainder of Singh's evidence — a letter from the Mann Party to corroborate his membership and photographs of his family with a Mann Party leader — do not corroborate his alleged harm.
In sum, because Singh did not provide reasonably available corroborating evidence, the agency did not err in finding that he failed to satisfy his burden of establishing past persecution on account of his political opinion. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 196-98. That finding is dispositive of asylum, withholding of removal, and CAT relief because all three forms of relief were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court