19-2839 Jin v. Barr BIA Conroy, IJ A087 568 648 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of December, two thousand twenty. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 SUSAN L. CARNEY, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 MING ZHE JIN, 14 Petitioner, 15 16 v. 19-2839 17 NAC 18 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Keith S. Barnett, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Mary 29 Jane Candaux, Assistant Director; 30 Remi da Rocha-Afodu, Trial 31 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Ming Zhe Jin, a native and citizen of the

10 People’s Republic of China, seeks review of an August 30,

11 2019, decision of the BIA affirming a February 12, 2018,

12 decision of an Immigration Judge (“IJ”) denying asylum,

13 withholding of removal, and relief under the Convention

14 Against Torture (“CAT”). In re Ming Zhe Jin, No. A087 568

15 648 (B.I.A. Aug. 30, 2019), aff’g No. A087 568 648 (Immig.

16 Ct. N.Y. City Feb. 12, 2018). We assume the parties’

17 familiarity with the underlying facts and procedural history.

18 We have reviewed the BIA’s decision. See Yan Chen v.

19 Gonzales,

(2d Cir. 2005). The applicable

20 standards of review are well established. See Yanqin Weng

21 v. Holder,

(2d Cir. 2009).

22 The sole issue is whether the BIA erred in rejecting

23 Jin’s ineffective assistance of counsel claim because he

24 failed to satisfy the procedural requirements for raising

25 such a claim. We find no error. To prevail on such a claim, 2 1 a petitioner must show that counsel’s performance was

2 deficient and that the deficiency caused prejudice.

3 Debeatham v. Holder,

(2d Cir. 2010). In

4 addition, the petitioner must comply with the procedural

5 requirements set out in Matter of Lozada,

637, 639 (B.I.A. 1988). Lozada requires

7 (1) an affidavit setting forth in detail the 8 agreement with former counsel concerning what action 9 would be taken and what counsel did or did not 10 represent in this regard; (2) proof that the alien 11 notified former counsel of the allegations of 12 ineffective assistance and allowed counsel an 13 opportunity to respond; and (3) if a violation of 14 ethical or legal responsibilities is claimed, a 15 statement as to whether the alien filed a complaint 16 with any disciplinary authority regarding counsel's 17 conduct and, if a complaint was not filed, an 18 explanation for not doing so. 19 20 Debeatham, 602 F.3d at 484–85 (quoting Twum v. INS,

54, 59 (2d Cir. 2005)). These requirements “serve to deter

22 meritless claims and to provide a basis for determining

23 whether counsel’s assistance was in fact ineffective.” Yi

24 Long Yang v. Gonzales,

(2d Cir. 2007)

25 (internal quotation marks omitted). Jin did not comply or

26 attempt to comply with any of the requirements and has thus

27 forfeited his ineffective assistance claim. Jian Yun Zheng

28 v. U.S. Dep’t of Justice,

(2d Cir. 2005)

29 (requiring substantial compliance with Lozada requirements).

3 1 We may excuse a lack of strict compliance with the Lozada

2 requirements if the ineffective assistance is “clear on the

3 face of the record,” but Jin’s case does not present such a

4 circumstance. Yi Long Yang, 478 F.3d at 142–43 (finding

5 ineffective assistance clear on the record where IJ

6 explicitly relied on counsel’s competence and counsel was

7 disbarred shortly after the hearing for his “truly shocking

8 disregard for his clients”). Although the record reflects

9 that Jin’s counsel was unfamiliar with Jin’s mother’s written

10 statement — submitted by a different attorney with Jin’s

11 asylum application — the record does not clearly show

12 prejudice because Jin never plausibly explained how his

13 statement could have contained language identical to that

14 found in his mother’s statement. According to his own

15 testimony, the two statements had been translated by

16 different people and neither his mother nor her translators

17 had access to his written statement. Given Petitioner’s lack

18 of compliance with Lozada, the record does not show how

19 counsel could have addressed this credibility concern or

20 provided an explanation for a document created and filed

21 before he had been retained. See Debeatham,

22 (requiring both deficient performance and prejudice to state

23 ineffective assistance claim). 4 1 Jin also alleged that his counsel was ineffective in not

2 questioning his sister at the hearing. Absent compliance

3 with Lozada, the BIA had no information about why counsel

4 chose not to question her. It is possible that counsel was

5 unprepared; it is also possible that counsel was concerned

6 her testimony would add inconsistency or otherwise further

7 undermine Jin’s claims. See Yi Long Yang,

8 (“Lozada requirements . . . provide a basis for determining

9 whether counsel’s assistance was in fact ineffective.”

10 (internal quotation marks omitted)). In sum, Jin has

11 forfeited his ineffective assistance claim because he did not

12 comply with the Lozada requirements or show that ineffective

13 assistance was “clear on the face of the record.”

at

14 142–43; see also Jian Yun Zheng,

.

15 For the foregoing reasons, the petition for review is

16 DENIED. All pending motions and applications are DENIED and

17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court

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