United States Court of Appeals
For the First Circuit
No. 03-1212
DE XIN WANG,
Petitioner,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jules E. Coven, with whom Matthew L. Guadagno and Bretz &
Coven, LLP were on brief for petitioner.
Laura L. Flippin, Attorney, Office of Immigration Litigation,
with whom Peter D. Keisler, Assistant Attorney General, and Emily
Anne Radford, Assistant Director, and Andrew M. Eschen, Attorney,
Office of Immigration Litigation, were on brief for respondent.
May 5, 2004
CYR, Senior Circuit Judge. After petitioner De Xin Wang,
a citizen of the People’s Republic of China, attempted to enter the
United States in June 1992 with a counterfeit alien registration
card, the Immigration and Naturalization Service ("INS") commenced
exclusion hearings. Wang thereupon submitted an asylum application
predicated on the contention that he would be subjected to
political persecution – based on his opposition to the Communist
Party – upon his return to China. Wang was married in the United
States in 1996. His wife gave birth to a boy in January 1997, and
to a girl in May 2000.
In June 2000, an immigration judge (IJ) denied Wang’s
application for asylum, and Wang appealed to the Board of
Immigration Appeals (BIA). While the BIA appeal was pending, Wang
hired new counsel, who submitted a motion to remand the case to the
IJ based upon a “new set of circumstances”: China likely would
require that Wang or his wife undergo forced sterilization under
the “One Child Policy” – which seeks to control the rate of China's
population growth – because the couple already had two children.1
The BIA denied the Wang appeal, as well as his remand
motion, on the ground that (i) the birth of the second child did
not constitute “new evidence,” but instead had occurred prior to
1
The Immigration and Naturalization Act was amended in 1996 to
provide that a well-founded fear of forced sterilization could
serve as a legitimate ground for granting asylum. See 8 U.S.C. §
1101(a)(42)(B); Qin v. Ashcroft, 360 F.3d 302, 306-07 (1st Cir.
2004).
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the June 2000 exclusion hearing, and (ii) Wang had provided no
testimony before the IJ that he harbored any fear of coerced
sterilization.
Once again Wang retained new counsel, who submitted a
motion to reopen and a second motion to remand with the BIA,
contending that Wang’s previous attorneys, who were well aware that
Wang had children, rendered ineffective assistance of counsel by
failing to pursue the alternate sterilization defense before the
IJ.2 In June 2003, the BIA denied both motions on two alternative
grounds. First, Wang failed to satisfy the threshold procedural
requirement that he submit an affidavit setting forth the
particular agreement between himself and his former counsel
regarding the scope of counsel’s representation. Second, the Wang
affidavit neither established that any prejudice resulted to his
case from any omission on the part of his former counsel, nor that
there was a sufficient likelihood that he would be subjected to
forced sterilization in the event he were to be returned to China.
Wang petitions for review of the June 2003 decision entered by the
BIA.
We review the denial of a motion to reopen exclusion
proceedings only for an abuse of discretion. See Mabikas v. INS,
2
A deportable alien possesses a Fifth Amendment due process
right to be free from incompetent legal representation which
renders the deportation proceedings fundamentally unfair. See
Betouche v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004).
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358 F.3d 145, 148 (1st Cir. 2004). An abuse of discretion will be
found where the BIA misinterprets the law, or acts either
arbitrarily or capriciously. See Fesseha v. Ashcroft, 333 F.3d 13,
20 (1st Cir. 2003).
Given the sheer volume of ineffective assistance of
counsel claims asserted by deportable aliens, the BIA has developed
threshold procedural requirements in order to enable the efficient
screening of frivolous, collusive or dilatory claims. See Betouche
v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) (citing Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) ("Lozada "), and In re
Rivera-Claros, 21 I. & N. Dec. 599, 604-05 (BIA 1996)). One of
these threshold requirements mandates that an alien submit – with
his motion to reopen – an affidavit “describing in detail the
agreement between the alien and his counsel regarding the
litigation matters the attorney was retained to address.” Id. at
149 (emphasis added). The detailed information provided in this
sworn affidavit enables the IJ and/or the BIA to pre-evaluate “the
bona fides of the petitioner's claim in [order to] determin[e]
whether a hearing is even warranted.” Id. at 150.
The affidavit submitted by Wang stated, in pertinent
part, that his former counsel
never asked me questions about family planning
conditions in China. They only asked if I was
married and if we had children. They did not
mention to me that conditions in China were
arguments they could make for me in my
[asylum] petition. They never asked about
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what happens in China when a wife who already
has children becomes pregnant, about whether
we wanted to have more children, or whether we
feared being sterilized if we were sent back.
. . . They had many chances to add our fears
about sterilization to my case. . . . They
did not give us a chance to tell them that if
my wife got pregnant again we could be fined
or, because we already have a son, my wife
could be forced to have an abortion if she got
pregnant or that she and I would be sterilized
if we were sent back. . . . [H]e did not tell
us that we could raise the family planning
conditions in China in our petition. He did
not explain that after 1997 we could argue
that the family planning conditions in China
were a reason for asylum here. He did not ask
us what family conditions were like in China
or about our fears about what we would face if
we were sent back with regard to our dream of
having a larger family. If he did ask I would
have told him that my sister was forced to
undergo an abortion when she was almost nine
months pregnant with her second child.
The BIA determined that the affidavit submitted by Wang failed to
satisfy the screening test prescribed in Lozada.
In Azanor v. Ashcroft, [___ F.3d ___ (9th Cir. 2004)] No.
02-73599, 2004 WL 720166 (9th Cir. Apr. 1, 2004), a virtually
identical contention was presented. There the BIA had denied a
Nigerian citizen’s asylum application which contended that were she
to be deported to Nigeria, she would be persecuted based upon her
ethnicity, religion, and political affiliation. Thereafter, the
alien retained new counsel, and submitted a motion to reopen her
case on the ground that her former attorney had rendered
ineffective assistance by failing either to inquire whether she had
undergone female genital mutilation (FGM) in Nigeria, or to inform
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her that fear of FGM constitutes a valid ground for asylum. Id. at
*8.
The Azanor court affirmed the BIA decision, on the ground
that Azanor failed to comply with the Lozada affidavit requirement:
“[Azanor’s sworn declaration] does not describe the nature and
scope of her agreement with [her former attorney] – facts essential
to a full and complete evaluation of her ineffective assistance
claim.” Id. Like the Azanor declaration, the affidavit submitted
by Wang focuses almost exclusively upon what his counsel did not
say, without ever indicating the scope of the legal representation
agreed upon. For all we can discern from the Wang affidavit, Wang
may have retained these attorneys for the sole purpose of
submitting an asylum application predicated upon his alleged fear
of persecution due to his opposition to the Communist Party. The
Wang affidavit includes no mention – nor suggestion – that Wang
retained his counsel to pursue any of the other potential grounds
for asylum.
Moreover, in order to demonstrate ineffective assistance
of counsel, the alien client must demonstrate that counsel’s action
or inaction rendered the immigration proceeding “so fundamentally
unfair that the alien was prevented from reasonably presenting his
case," and that there is a reasonable probability that counsel's
conduct resulted in actual prejudice to the case. See Saakian v.
INS, 252 F.3d 21, 25 (1st Cir. 2001). The BIA did not abuse its
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discretion in concluding that the Wang affidavit failed to
demonstrate that his case was prejudiced by any omission on the
part of his former counsel. Rather, the Wang affidavit
acknowledges that he never informed his former counsel that he
feared returning to China because he and his wife wanted to have
more children in the future, and he or she might be sterilized.3
This is a significant omission. Although the affidavit asserts
that Wang had “no opportunity” to inform his attorneys of his fear
of sterilization, Wang concedes on appeal that he was accorded the
opportunity to inform his former counsel of his reasons for fearing
persecution in the event he were deported to China, but that he
informed them only as to his past opposition to the Communist
government. Wang now suggests that he would have advised his
former attorneys regarding his fear of sterilization as well, had
he known that it is a ground for asylum. Yet he concedes that he
was unfamiliar with immigration law, and did not know which of his
subjective fears might entitle him to seek asylum. Given even the
grotesque prospect of being subjected to coerced sterilization,
however, one reasonably could be expected, at the very least, to
mention any such prospect to his own counsel during the course of
his description of whatever fears he harbored in connection with
returning to China.
3
Nor did Wang ever testify before the IJ to any subjective
fear of forced sterilization.
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Additionally, Wang contends that his former attorneys,
after having been informed that Wang was a married man with
children, should have anticipated that he would want to have more
children, and therefore that he might harbor a fear of forced
sterilization. Short of assuming either omniscience on the part of
counsel, or presupposing that Wang retained counsel on the
understanding that they would ferret out every conceivably
applicable ground for asylum for which Wang might qualify, see
supra, the objective circumstances in the instant case certainly
did not compel a reasonable inference that Wang could prevail upon
an asylum application predicated upon a fear of coerced
sterilization.4 In order to present a viable asylum claim, the
applicant must demonstrate both an objectively reasonable and a
subjective fear of persecution. See 8 C.F.R. § 208.13(b)(2);
Guzman v. INS, 327 F.3d 11, 16 (1st Cir. 2003). Thus, any
prejudice to Wang’s case proximately flowed from Wang’s failure to
convey to counsel a predicate fact: Wang's subjective fear of such
persecution. See Azanor, [___ F.3d ___], No. 02-73599, 2004 WL
720166, at *9 (“By her own admission, Azanor never informed [her
former counsel] that she had suffered FGM in Nigeria. Thus, any
4
Moreover, we note that the record evidence does not compel an
inference that Wang’s subjective fear of sterilization would be
considered objectively reasonable, as the record contains evidence
that the compelled sterilization policy is not enforced
systematically in the rural areas of China where Wang resided. Cf.
Qin, 360 F.3d at 307.
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prejudice arising from [her former attorney’s] failure to raise an
FGM claim in her original deportation proceeding was directly
attributable to Azanor’s failure to inform [her former attorney]
rather than the quality of [his] representation.”); cf. Sims v.
Singletary, 155 F.3d 1297, 1316 (11th Cir. 1998) (noting that
counsel’s performance cannot be considered deficient if counsel was
"unaware due to [the client’s] refusal to assist them in obtaining
the information”); Langford v. Day, 110 F.3d 1380, 1386-88 (9th
Cir. 1997) (noting that counsel’s failure to pursue a Miranda
defense did not constitute ineffective assistance, because the
defendant failed to inform his counsel of the events surrounding
the alleged Miranda violation).5
As the affidavit submitted by Wang failed to disclose
sufficient indicia of any ineffective assistance of counsel,
Saakian, 252 F.3d at 25, the BIA did not abuse its discretion in
rejecting the motion to reopen the exclusion proceedings.
Affirmed.
5
Before this court, Wang now contends, by way of analogy, that
a client charged with homicide who consults a criminal attorney,
and merely tells him that he has an alibi defense, would expect the
attorney to pursue other potentially available defenses as well,
such as a statute-of-limitations bar. The analogy is seriously
flawed. A criminal attorney in such a circumstance might verify
the viability of a limitations defense once apprised of one
objective fact (viz., the date of the alleged homicide), a fact
which may or may not have been learned from the client. In
contrast, the viability of the Wang sterilization claim would only
become apparent to an attorney if and when the client expressed a
subjective fear, information which obviously can only be derived
from the asylum applicant.
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