20-1855 Singh v. Garland BIA A206 443 847

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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 JOSEPH F. BIANCO, 9 BETH ROBINSON, 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 GURDEV SINGH, 15 Petitioner, 16 17 v. No. 20-1855 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jagbir S. Terkiana, San Jose, CA. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Senior Litigation Counsel; Margot 29 L. Carter, Senior Litigation 1 Counsel, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is GRANTED.

10 Petitioner Gurdev Singh, a native and citizen of India,

11 seeks review of a May 21, 2020 decision of the BIA denying

12 his motion to reopen his removal proceedings based on

13 ineffective assistance of counsel. In re Gurdev Singh, No.

14 A 206-443-847 (B.I.A. May 21, 2020). We assume the parties’

15 familiarity with the underlying facts and procedural history.

16 Our review is limited to the BIA’s denial of reopening

17 because Singh timely petitioned for review of only that

18 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

, 89–90 (2d Cir. 2001). In considering challenges to

20 the BIA’s denial of reopening, “we review the factfinding

21 below for abuse of discretion” and “we review de novo

22 constitutional claims and questions of law.” See Luna v.

23 Holder,

, 102—03 (2d Cir. 2011).

24 In the removal proceeding context, “[i]neffective

25 assistance of counsel . . . occurs when counsel’s performance

2 1 impinged upon the fundamental fairness of the hearing in

2 violation of the fifth amendment due process clause[,]” that

3 is “when (1) competent counsel would have acted otherwise,

4 and (2) the alien was prejudiced by counsel’s performance.”

5 Iavorski v. INS,

, 128–29 (2d Cir. 2000) (internal

6 quotation marks omitted).

7 The BIA erred in concluding that Singh failed to

8 establish ineffective assistance of counsel. The immigration

9 judge (“IJ”) found that Singh was not credible because he

10 claimed in his asylum application that he stopped working as

11 a farmer in India in June of 2013 and that he left India in

12 July of 2013. These dates contradicted one of the central

13 claims in Singh’s various petitions for relief: that he was

14 attacked in India in August of 2013. Singh testified to the

15 IJ that he departed India in September of 2013. When the IJ

16 flagged that this testimony was inconsistent with the dates

17 provided in his asylum application, Singh testified that he

18 did not understand, could not explain the discrepancy, and

19 reiterated that he left India in September of 2013. Singh’s

20 testimony that he was attacked in August of 2013 and fled

21 India in September of 2013 is consistent with a written

22 declaration provided by Singh in this matter, the oral

3 1 testimony he gave during his credible fear interview,

2 affidavits from family members, and an affidavit of a

3 physician who claims to have treated Singh for “[b]lunt

4 injuries of back and legs and nasal bleedings” in a hospital

5 in Jalmana, India on August 18, 2013.

6 Singh’s former counsel, Mukta Chand (“Chand”) informed

7 the IJ that the June and July dates in the asylum application

8 were errors. The IJ rejected this explanation, found Singh’s

9 testimony about the attacks in India to lack credibility, and

10 denied asylum, withholding of removal, and CAT relief. Singh

11 appealed, but the BIA affirmed the IJ’s decision. Singh did

12 not petition for review in this Court.

13 Instead, Singh filed a timely motion to reopen with the

14 BIA, arguing that his former counsel, Chand, was ineffective.

15 As is relevant here, Singh alleges that he knew Chand had

16 entered incorrect dates in his asylum application concerning

17 the end of his employment and his departure from India, that

18 he had asked her to correct the errors, and that she failed

19 to do so. In response to the bar complaint that Singh filed

20 against her, Chand claims that Singh himself provided her

21 with the disputed dates, and that she simply relied on Singh’s

22 representations.

4 1 The BIA denied Singh’s motion to reopen, finding that he

2 did not persuasively demonstrate that Chand introduced the

3 alleged errors into the application. The BIA weighed Singh’s

4 allegations in his motion against Chand’s statements and the

5 fact that Singh swore at his immigration hearing that the

6 contents of his application were read to him in his native

7 language and were correct. The BIA credited Chand’s version

8 of events and concluded that because Singh gave Chand the

9 incorrect dates, he did not suffer from ineffective

10 assistance of counsel.

11 While the BIA did not abuse its discretion in crediting

12 Chand’s version of events over Singh’s, the BIA erred as a

13 matter of law in concluding that Singh had not established

14 that he received ineffective assistance of counsel. Even

15 assuming that Chand’s version of events is accurate, Chand’s

16 representation of Singh was inadequate. In Chand’s telling,

17 Singh provided her with incorrect dates, and she simply

18 recorded those dates in the application notwithstanding that

19 the dates plainly rendered his timeline impossible. She then

20 realized during the IJ hearing that the dates were erroneous,

21 and argued in her brief on appeal to the BIA that the dates

22 included in the asylum application were erroneous.

5 1 Chand’s failure to address the plainly inconsistent dates

2 to fix what she herself claims were errors renders her

3 performance incompetent. Competent counsel would have

4 realized when preparing the application, and in preparing for

5 the hearing, that the dates included in the asylum application

6 did not make sense. Competent counsel would have recognized

7 that one cannot have fled India in July of 2013 and then have

8 been attacked in India in August of 2013. Competent counsel

9 would have worked with their client to confirm the correct

10 timeline and fix the error before submitting the application.

11 While even “unwise” tactical or strategic decisions “that

12 ultimately fizzle and redound to the client’s detriment” do

13 not necessarily constitute ineffective assistance of counsel,

14 see Jiang v. Mukasey,

, 270–71 (2d Cir. 2008),

15 there is no possible strategic or tactical reason for allowing

16 a client to submit an asylum application that presents a

17 timeline that is facially impossible. And while an attorney

18 can be forgiven for overlooking minor inconsistencies, an

19 attorney’s failure to flag and resolve a factual error that

20 renders their client’s claims for relief incomprehensible is

21 the kind of mistake that “self-evident[ly]” constitutes

22 ineffective assistance of counsel. Cf. Aris v. Mukasey, 517

6

(2d Cir. 2008) (explaining that it is “self-

2 evident” that failing to properly advise a client as to the

3 date of their immigration hearing constitutes ineffective

4 assistance of counsel).

5 Chand’s failure to flag and resolve the mistaken dates,

6 furthermore, plainly prejudiced Singh. As the government

7 concedes, the IJ based the adverse credibility finding solely

8 on the inconsistency between Singh’s testimony regarding the

9 August 2013 attack and the dates listed in Singh’s asylum

10 application. Singh has therefore established that he was

11 deprived of effective assistance of counsel during his

12 removal proceedings in violation of his due process rights.

13 See Iavorski, 232 F.3d at 128–29.

14 For the foregoing reasons, the petition for review is

15 GRANTED. The BIA’s decision is VACATED, and the case is

16 REMANDED to the BIA for proceedings consistent with this

17 order.

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

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