Geng Mei Weng v. Attorney General of the United States , 528 F. App'x 157 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4074
___________
GENG MEI WENG a/k/a Gengmei Weng,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095 673 992)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 22, 2013
Before: RENDELL, CHAGARES and NYGAARD, Circuit Judges
(Opinion filed: June 11, 2013 )
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OPINION
_________
PER CURIAM
Geng Mei Weng, a citizen of the People’s Republic of China, petitions for review
of a Board of Immigration Appeals (BIA) decision that denied her motion to reopen. We
will deny her petition.
In 2004, upon arriving in Los Angeles without valid entry documents, Weng was
placed into removal proceedings under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Administrative
Record (A.R.) 966. During a credible-fear interview, Weng described herself as a
Christian and spoke of a raid on the house church at which she worshiped—a raid that led
to the beating of a friend and her concomitant decision to go into hiding. A.R. 39. But
Weng’s asylum application told a different story: she explained that she was actually
Buddhist, not Christian, and had only claimed otherwise on the advice of the smugglers
responsible for her carriage to the United States. A.R. 891, 904. Instead of raising a
religious claim, Weng emphasized her fear that she would be persecuted under China’s
family-planning rules. See, e.g., A.R. 411 (explaining that Weng was “afraid that if [she]
return[s] [she] will be sterilized”).
The record inconsistency was the topic of cross examination at the January 2010
merits hearing before the Immigration Judge (IJ). Weng remembered telling an
immigration officer that she was Christian, but stressed that she had never been Christian
and that she was simply acting on outside advice; by contrast, she emphasized that “[n]o
one” had told her to express her genuine fear of sterilization in China. See A.R. 421–22;
see also A.R. 408–09 (affirming the truth of the statements contained in her asylum
application and her testimony at the hearing).
In an oral decision, the IJ “consider[ed] the fact that . . . [Weng] had provided at
least what purports to be inconsistent, if not downright incorrect information to
Immigration officials when she originally came to the United States.” A.R. 303. Despite
this, the IJ found Weng to have testified credibly, because “the Court does believe the
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respondent when she says that the reason she provided incorrect information when she
first came to this country was because she was told to do so by the snakeheads.” A.R.
303–04. However, the IJ ultimately denied relief from removal, a disposition affirmed by
the BIA in May 2012.
Weng did not petition for review of the BIA’s final order but instead timely filed a
motion to reopen. See 8 C.F.R. § 1003.2(c). With the assistance of new counsel, she
argued that her previous attorney had rendered ineffective assistance by failing to “pursue
her claims for asylum, withholding of removal, and relief under Article 3 of the U.N[.]
Convention Against Torture based on persecution she would receive as a Christian.”
A.R. 21. Weng maintained, for example, that her 2008 baptism “could have been raised
prior to the individual hearing in 2010,” and that she had been a practicing Christian since
before her arrival in the United States, thereby contracting her earlier testimony. A.R. 22.
Attached to the motion to reopen was the (partial) record of disciplinary proceedings
against former counsel per the requirements of In re Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988).
The BIA denied the motion to reopen, reasoning that 1) Weng had not established
that counsel rendered ineffective assistance, but 2) even if counsel had been ineffective,
Weng had not shown prejudice sufficient to warrant a reopening of proceedings. See
A.R. 4–5. Weng now seeks our review of this decision.
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We have jurisdiction under 8 U.S.C. § 1252(a).1 “We review de novo questions of
law, such as whether petitioner[’s] due process rights to the effective assistance of
counsel have been violated,” but we otherwise review “the denial of a motion to reopen
for abuse of discretion and may reverse only if the denial is arbitrary, irrational, or
contrary to law.” Contreras v. Att’y Gen., 665 F.3d 578, 583 (3d Cir. 2012) (citations
omitted). In evaluating ineffectiveness claims, we “apply the familiar two-part error-and-
prejudice test,” examining both the competence of counsel and whether the alleged
performance shortcomings prejudiced the petitioner. Id. at 584 (citation omitted).2 The
standard for evaluating deficient performance is similar to the standard we employ in
evaluating Sixth Amendment claims of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668 (1984). See Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3d
Cir. 2007) (“This familiar test . . . serves as a useful surrogate for the due process inquiry,
as it measures substantially the same elements required to establish a denial of due
process . . . .”); see also id. at 162 (holding that counsel’s performance “fell below an
objective standard of reasonableness under prevailing professional norms”) (internal
quotation marks and citation omitted).
1
We review only the denial of the motion to reopen because Weng did not separately
seek review of the BIA’s earlier decision. See Castro v. Att’y Gen., 671 F.3d 356, 364
(3d Cir. 2012) (citing Stone v. INS, 514 U.S. 386, 398–99, 405 (1995)).
2
Because the BIA reached the underlying merits of Weng’s ineffectiveness claim, we
will assume that she satisfied the procedural elements of Lozada. See Kwong v. Holder,
671 F.3d 872, 876 (9th Cir. 2011) (citation omitted).
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We agree with the BIA that Weng failed to show that counsel rendered ineffective
assistance. In the affidavit she submitted along with her motion to reopen, Weng pointed
to two discrete instances of alleged infectiveness: first, when her attorney’s paralegal did
not believe that her Christianity story was truthful; and second, when counsel failed to
file a supplemental I-589 after her baptism in 2008, three years after her original asylum
application and more than a year before her eventual merits hearing. With regard to the
first instance, we recognize that, in certain cases, the conduct of a paralegal can be
probative of constitutionally ineffective assistance. See, e.g., Aris v. Mukasey, 517 F.3d
595, 596 (2d Cir. 2008). But Weng’s affidavit contains little detail about the
circumstances under which the paralegal ultimately rejected her claim—whether on the
grounds of expediency, strategy, disbelief, or so on. See A.R. 32. An attorney does not
violate professional norms by refusing to pursue a claim that will not prevail, nor does he
tender ineffective assistance by choosing the path most likely to succeed. See Werts v.
Vaughn, 228 F.3d 178, 202 (3d Cir. 2000); Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.
1996). Nor, for that matter, does Weng address why she acquiesced to the
“misrepresentation,” despite being informed by the IJ that fabricated statements in an I-
589 would carry “serious consequences.” A.R. 328. Her claim that she lacked “any
idea” of what was in her application, see A.R. 32, is contradicted by her contemporary
assertion that the I-589 was translated for her and represented a “true and correct”
statement of her case. A.R. 328–29; see also A.R. 356–57 (attesting again to her
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understanding of the I-589 at a 2007 hearing). Moving to the second component of
Weng’s ineffectiveness claim, we note that by 2008, Weng had repeatedly affirmed the
truth of her application as originally submitted and had denied her previously alleged
affiliation with Christianity. Although Weng says that her attorney “ignored” her post-
2008 request to supplement her asylum application, to add a Christianity-based claim
after thoroughly repudiating it would be to risk an adverse-credibility finding, and Weng
has not shown that counsel’s failure to so supplement the application represented a
professional dereliction. Aliens shoulder the burden of showing attorney ineffectiveness,
and without more information, we cannot conclude that Weng’s previous counsel was
ineffective under the Sixth Amendment framework of Strickland. Accordingly, counsel
was also not ineffective under the Fifth Amendment Due Process analysis used in
immigration proceedings. See Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir.
2009). On this record, we therefore cannot conclude that the BIA abused its discretion in
denying Weng’s motion to reopen.
Weng also argues that the BIA “ignored the unpublished decisions reopening
cases for conversion [to] Christianity.” Pet’r’s Br. 16. “[U]npublished, single-member
BIA decisions have no precedential value, do not bind the BIA, and therefore do not
carry the force of law except as to those parties for whom the opinion is rendered.” De
Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 350 (3d Cir. 2010). Weng avers that the cases
upon which she relies are “similar” to hers, but given the broad variety of possible
postures for motions to reopen, we cannot take her representation as proof that the BIA
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impermissibly departed from its standard practice. Finally, to the extent that Weng
requests remand so that the BIA may consider granting sua sponte relief, she never
sought sua sponte reopening before the agency and the matter is therefore unexhausted
and beyond our reach, see 8 U.S.C. § 1252(d)(1). Besides, this is not one of the narrow
situations in which remand for further sua sponte consideration is appropriate. See, e.g.,
Pllumi v. Att’y Gen., 642 F.3d 155, 163 (3d Cir. 2011).
For the foregoing reasons, we will deny the petition for review.
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