Khemlall v. Sessions , 697 F. App'x 739 ( 2017 )

16-407
Khemlall v. Sessions
BIA
Videla, IJ
A078 411 215
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 21st day of June, two thousand seventeen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 HARISCHANDRA KHEMLALL,
14 Petitioner,
15
16 v. 16-407
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Kai W. De Graaf, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General, John S.
27 Hogan, Assistant Director, Robbin K.
28 Blaya, Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Harischandra Khemlall, a native and citizen of
6 Guyana, seeks review of a February 1, 2016, decision of the BIA
7 affirming both a May 12, 2015, decision of an Immigration Judge
8 (“IJ”) denying Khemlall’s motion to reopen for ineffective
9 assistance of counsel and a May 17, 2013, decision denying
10 Khemlall’s application for withholding of removal and relief
11 under the Convention Against Torture (“CAT”). In re
12 Harischandra Khemlall, No. A078 411 215 (B.I.A. Feb. 1, 2016),
13 aff’g No. A078 411 215 (Immig. Ct. N.Y. City May 17, 2013 and
14 May 12, 2015). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we have reviewed the
17 IJ’s decision as modified by the BIA, i.e., minus the adverse
18 credibility ruling that the BIA declined to reach. See Xue Hong
19 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 I. Ineffective Assistance of Counsel
21 An alien seeking to reopen proceedings on the basis of
22 ineffective assistance of counsel must show that counsel’s
23 performance was “so ineffective as to have impinged upon the
2
1 fundamental fairness of the hearing” and caused prejudice.
2 Changxu Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir. 2008)
3 (quoting Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43,
4 46 (2d Cir. 2005)); see also Debeatham v. Holder, 602 F.3d 481,
5 485 (2d Cir. 2010). We find no abuse of discretion in the
6 agency’s decision not to reopen proceedings based on
7 ineffective assistance of counsel. See Debeatham, 602 F.3d at8 484 (applying abuse of discretion standard of review).
9 As the agency found, counsel’s performance was not
10 deficient. First, the agency reasonably concluded that the
11 adverse credibility determination regarding Khemlall and his
12 mother could not be attributed to lack of preparation by
13 counsel. For example, Khemlall’s statement under oath that he
14 was deported to Guyana in 2000 conflicted with record evidence
15 that he was deported to Trinidad and Tobago. Khemlall’s
16 assertion that he informed his counsel of the correct
17 information was contradicted by his counsel’s testimony. It
18 was not an abuse of discretion for the agency to credit the
19 attorney’s testimony, particularly given that Khemlall did not
20 confess to the deportation to Trinidad and Tobago until
21 confronted on cross-examination. See Jian Hui Shao v. Mukasey,
22 546 F.3d 138, 157 (2d Cir. 2008) (according substantial
23 deference to the agency’s findings of fact and “assessment of
3
1 competing evidence”). Similarly, Khemlall claimed that he
2 sought asylum and went before an IJ in 2000. But, as the agency
3 found, those allegations are belied by the immigration
4 officer’s notes from 2000 and no amount of preparation by
5 previous counsel could have resolved this inconsistency because
6 Khemlall continues to assert a different version of events than
7 what is shown by the record.
8 The agency also reasonably determined that Khemlall’s
9 failure to produce evidence of his identity was not the fault
10 of counsel. There was a dispute of fact: Khemlall argued that
11 his attorney had his identity documents and failed to turn them
12 over to the IJ, but his attorney testified to the contrary,
13 stating that Khemlall had told him the documents were lost. The
14 agency’s decision to credit the attorney’s testimony is
15 supported by the record given Khemlall’s testimony during the
16 original merits hearing that he did not know where his passport
17 was and his statement during his reasonable fear interview that
18 he lost it.
19 Counsel’s failure to raise a domestic violence claim was
20 not deficient performance because a strategic decision not to
21 press a weaker claim is reasonable. Cf. Jones v. Barnes, 463
22 U.S. 745, 754 (1983) (defense counsel not required to “raise
23 every ‘colorable’ claim suggested by a client”). Counsel
4
1 testified that a claim based on the 32-year-old Khemlall’s fear
2 of his father due to abuse that Khemlall experienced as a child
3 would have stretched credibility. See Romero v. U.S. INS, 399
4 F.3d 109, 112–13 (2d Cir. 2005) (holding that counsel’s decision
5 to omit issue that may have hurt applicant’s credibility is not
6 ineffective assistance).
7 Nor did the agency err in rejecting Khemlall’s argument
8 that counsel submitted insufficient documentation and was
9 inadequately versed in immigration law. The record included
10 nine years of country reports on the conditions in Guyana, as
11 well as numerous articles covering incidents of violence.
12 Khemlall focuses on counsel’s failure to gather and submit
13 evidence in support of a domestic violence claim, but as
14 explained above, the decision to forgo that claim did not
15 constitute ineffective assistance.
16 Finally, the agency reasonably determined that Khemlall
17 failed to demonstrate any prejudice as a result of counsel’s
18 actions. Khemlall does not explain how the result in his case
19 would have changed if counsel had acted differently or made
20 different decisions. See Debeatham, 602 F.3d at 485 (“[A]n
21 alien claiming ineffective assistance of counsel must also show
22 prejudice resulting from counsel’s alleged deficiencies.”).
23 The bond motions could not have changed the outcome because they
5
1 were independent of the merits proceedings. And Khemlall has
2 not shown that his domestic violence claim would have fared
3 better than the claims presented by counsel, particularly given
4 that Khemlall is an adult and suffered violence from his father
5 as a child. Khemlall’s own expert could not say definitively
6 that such a claim would have been successful, and the passage
7 of time weighs against Khemlall having an objectively
8 reasonable fear of his father.
9 Khemlall also argues that the agency erred in refusing to
10 consider the merits of his domestic violence claim, regardless
11 of its denial of his ineffective assistance of counsel claim.
12 Khemlall misunderstands the standard applicable to his motion
13 to reopen. Absent ineffective assistance, his domestic
14 violence claim did not meet the standard for reopening because
15 the claim was available and could have been presented in the
16 initial proceeding before the IJ. An applicant seeking to
17 reopen his case bears a “heavy burden” of presenting “previously
18 unavailable, material evidence” that “would likely change the
19 result in the case.” Matter of Coelho, 20 I. & N. Dec. 464,
20 472-73 (BIA 1992); see also 8 C.F.R. §§ 1003.2(c)(1),
21 1003.23(b)(3). Khemlall cites to a phrase in the BIA’s remand
22 order that the IJ was to consider “evidence related to
23 [Khemlall’s] application for relief,” as proof that the IJ was
6
1 required to consider the merits of his domestic violence claim.
2 But the BIA remanded for consideration of ineffective
3 assistance as a prerequisite to granting reopening, not for
4 immediate consideration of claims that could only be brought
5 if proceedings were reopened.
6 II. Withholding of Removal and CAT Relief
7 We find no error in the agency’s denial of withholding of
8 removal and CAT relief. The agency reasonably determined that
9 Khemlall was not subject to past persecution in Guyana.
10 Khemlall asserted only harassment and one incident in which he
11 was hit by a bottle. Khemlall failed to provide evidence that
12 his injury was serious or that it required any medical
13 treatment. Accordingly, as the agency found, the past harm
14 suffered did not rise to the level of persecution. Ivanishvili
15 v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
16 (persecution involves the “infliction of suffering or harm”
17 that goes beyond “mere harassment”).
18 Nor did he show a well-founded fear of future harm or
19 torture. Although the country reports and articles reflect
20 violence in Guyana, the violence described is not politically
21 motivated, and Khemlall submitted no evidence showing that he
22 personally would be targeted on return to Guyana. Jian Xing
23 Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (fear of
7
1 future persecution must have “solid support in the record”);
2 Vanegas-Ramirez v. Holder, 768 F.3d 226, 239 (2d Cir. 2014)
3 (testimony must be “factually specific” to support a fear of
4 future persecution) (internal quotation marks omitted); see
5 also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 158
6 (2d Cir. 2005) (requiring “particularized evidence suggesting
7 that [applicant] is likely to be subjected to torture”).
8 Instead, Khemlall testified that his party is the ruling party
9 in Guyana and that it is working to improve racial tensions,
10 undermining his claim that he would be persecuted or tortured
11 for his support of the party.
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
8