Filed: Aug. 13, 2012
Latest Update: Feb. 12, 2020
Summary: 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
Summary: 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 ..
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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
6
