Shen v. Holder, (2nd Cir. 2009)
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08-4592-ag
Shen v. Holder
BIA
Elstein, IJ
A096 205 599
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14 th day of May, two thousand nine.
PRESENT:
HON. SONIA SOTOMAYOR,
HON. BARRINGTON D. PARKER,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges.
QIN SHU SHEN,
Petitioner,
v. 08-4592-ag
NAC
ERIC H. HOLDER JR., ATTORNEY GENERAL, *
Respondent.
FOR PETITIONER: Man C. Yam, Bernard & Yam, LLP, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant Attorney General, Luis E. Perez, Senior Litigation Counsel, Edward C.
Durant, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Qin Shu Shen, a native and citizen of the People's Republic of China, seeks review of an August 19, 2008 order of the BIA affirming the June 22, 2006 decision of Immigration Judge ("IJ") Annette S. Elstein, which pretermitted her application for asylum and denied her application for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Qin Shu Shen, No.
A096 205 599 (B.I.A. Aug. 19, 2008), aff'g No. A096 205 599 (Immig. Ct. N.Y. City June 22, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
I. Waiver Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (citing Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998)). In her brief to this Court, Shen does not contest either the agency's denial of her motion to remand based on the availability of her son and daughter-in-law's testimony, or the agency's pretermission of her untimely asylum application.
Therefore, we deem waived any such challenge. See id.
In addition, Shen fails to challenge the agency's finding that she was not credible. As a result, any such challenge is also deemed waived. See id. We note that no manifest injustice will result from this waiver, as a review of the record shows that substantial evidence supports the IJ's adverse credibility determination. The IJ reasonably relied on various discrepancies in the record. Therefore, we will not disturb the agency's denial of Shen's application for withholding of removal and CAT relief to the extent both claims were based on her alleged hiding of a Falun Gong practitioner.
II. Motion to Reopen The BIA properly denied Shen's motion to reopen based on the alleged ineffective assistance of her trial counsel because she failed to show that any ineffective assistance prejudiced the outcome of her case. In order to prevail on a claim of ineffective assistance of counsel, a movant must show that competent counsel would have acted otherwise, and that the alien was prejudiced by her counsel's performance.
See Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per curiam); In re Compean, 24 I. & N. Dec. 710, 733-34 (A.G.
2009). The Attorney General recently defined prejudice as a showing that the alien would more likely than not have been granted the relief sought if not for her attorney's inadequate performance. See In re Compean, 24 I. & N. Dec. at 733-34.
Here, the BIA properly concluded that Shen had not shown that, absent her counsel's alleged errors, she would more likely than not have received relief. While Shen identifies a variety of alleged errors at her merits hearing, she does not even allude to the actions that her prior counsel could have taken that would have led to a different result. See Rabiu, 41 F.3d at 882-83; Esposito, 987 F.2d at 111. Indeed, as we previously noted, Shen failed to challenge the agency's adverse credibility finding. Accordingly, the BIA did not err in denying Shen's motion to reopen based on ineffective assistance of counsel.
III. CAT Relief Finally, the agency did not err in denying Shen's claim for CAT relief based on her illegal departure from China.
The IJ properly found, and the BIA agreed, that Shen failed to present any evidence in support of such a claim. Indeed, Shen testified that she left China using her own passport after inspection by Chinese officials, and thus did not illegally depart China. See Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005). Moreover, to the extent that Shen argues that she will more likely than not be tortured for merely seeking refuge in the United States, she has provided no evidence that persons in her circumstances are subjected to the requisite likelihood of torture upon return to China. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003). Therefore, the agency did not err in denying Shen's application for CAT relief.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.
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