10-3728-ag (L)
Samad v. Holder
BIA
Chew, IJ
A098 423 145
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 21st day of February, two thousand twelve.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHEIKH HASSAN SAMAD,
14 Petitioner,
15
16 v. 10-3728-ag (L);
17 11-1248-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Theodore C. Hirt, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington, D.C.
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
4 is DENIED.
5 Petitioner Sheikh Hassan Samad, a native and citizen of
6 Pakistan, seeks review of a March 14, 2011 decision of the
7 BIA, denying his motion to reopen his removal proceedings.
8 In re Sheikh Hassan Samad, No. A098 423 145 (B.I.A. Mar. 14,
9 2011). He also seeks review of an August 25, 2010 order of
10 the BIA, affirming the March 23, 2009 decision of
11 Immigration Judge (“IJ”) George T. Chew, which denied his
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Sheikh
14 Hassan Samad, No. A098 423 145 (B.I.A. Aug. 25, 2010), aff’g
15 No. A098 423 145 (Immig. Ct. N.Y. City Mar. 23, 2009). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
20 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
21 of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
23 (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
24 2005) (per curiam).
2
1 In finding Samad not credible, the agency reasonably
2 relied on his previous filing of a fraudulent asylum
3 application in Canada under a false name, as well as the
4 fact that he applied for and received public assistance in
5 Canada under both his true name and alias. Although Samad
6 later admitted to the fraudulent filing before the IJ, he
7 failed to disclose this fact in his asylum application. See
8 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d Cir.
9 2008); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d
10 Cir. 2007).
11 Having found Samad not credible, the agency reasonably
12 noted that his failure to provide additional corroborative
13 evidence further undermined his credibility. See 8 U.S.C.
14 § 1158(b)(1)(B)(ii). Although Samad argues that the agency
15 improperly “conflat[ed] corroboration with credibility,” we
16 have recognized that an applicant’s failure to corroborate
17 his or her testimony may bear on credibility, either because
18 the absence of particular corroborating evidence is viewed
19 as suspicious, or because the absence of corroboration in
20 general makes an applicant unable to rehabilitate testimony
21 that has already been called into question. See Biao Yang
22 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).
3
1 Here, because Samad’s credibility had already been called
2 into question, the agency reasonably relied on Samad’s
3 failure to provide additional corroborating evidence, such
4 as medical records from his and his brother’s beatings,
5 which allegedly resulted in three and five day hospital
6 stays respectively.
7 Because the agency’s adverse credibility determination
8 is otherwise supported by substantial evidence, even if we
9 were to credit Samad’s assertion that the inconsistency in
10 the record concerning the date of his brother’s beating was
11 a result of his counsels’ errors, remand would not be
12 necessary. See Ramsameachire v. Ashcroft, 357 F.3d 169, 182
13 n.3 (2d Cir. 2004). Similarly, because the agency’s adverse
14 credibility determination is a valid alternative basis for
15 the denial of asylum, we decline to reach Samad’s claim that
16 the untimely filing of his asylum application was the result
17 of his counsels’ ineffective assistance. Even assuming that
18 Samad is correct, he is unable to show that he was
19 prejudiced as a result of his counsels’ errors, as the
20 agency found that he was not eligible for a grant of asylum
21 due to his lack of credibility, even if his application had
22 been timely filed. See Rabiu v. INS, 41 F.3d 879, 882-83
23 (2d Cir. 1994).
4
1 Lastly, the BIA did not abuse its discretion in denying
2 Samad’s motion to reopen his removal proceedings. In order
3 to prevail on a claim of ineffective assistance of counsel,
4 a movant must show that competent counsel would have acted
5 otherwise, and that he was prejudiced by his counsels’
6 performance. See Rabiu, 41 F.3d at 882-83; Esposito v. INS,
7 987 F.2d 108, 111 (2d Cir. 1993). “[T]o show that his
8 attorneys[’] failure to file caused him actual prejudice,
9 [Samad] must make a prima facie showing that he would have
10 been eligible for the relief and that he could have made a
11 strong showing in support of his application.” Rabiu, 41
12 F.3d at 882. Here, the denial of the motion to reopen was
13 not an abuse of discretion because, as the BIA noted, even
14 taking Samad’s allegations concerning his counsels’
15 deficient performance as true, he failed to show that he was
16 prima facie eligible for a grant of asylum in light of the
17 agency’s underlying adverse credibility determination.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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