Opinion
No. 05-5869-ag.
October 9, 2007.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED, that the petition for review of the decision of the Board of Immigration Appeals ("BIA") be and hereby is DENIED.
For Petitioner: MATTHEW L. GUADAGNO (Jules E. Coven, Kerry W. Bretz, on the brief), Bretz Coven, LLP, New York, New York.
For Respondent: R. ALEXANDER GORING (Catherine L. Hanaway, United States Attorney for the Eastern District of Missouri, Suzanne J. Moore, Assistant United States Attorney, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
Present: HON. WILFRED FEINBERG, HON. SONIA SOTOMAYOR, HON. RICHARD C. WESLEY, Circuit Judges.
Petitioner Jian Feng Luo, a citizen of the People's Republic of China, petitions for review of the September 29, 2005 BIA order denying his motion to remand in order to submit additional evidence of hardship not previously presented because of ineffective assistance of prior counsel. In re Jian Feng Luo, No. A73 539 717 (B.I.A. Sept. 29, 2005), aff'g No. A73 539 717 (Immig. Ct. N.Y. City Aug. 25, 2003). The BIA order also affirmed the August 25, 2003 decision of Immigration Judge ("IJ") Miriam K. Mills, denying his application for adjustment of status under section 245 of the Immigration and Nationality Act (INA) and his application for a waiver of inadmissibility under INA section 212(i). Id. Luo's petition, however, challenges only the denial of his motion to remand. We assume the parties' familiarity with the underlying facts and procedural history of the case.
Luo contends that the BIA's denial of his motion to remand lacks sufficient detail for meaningful review because he raised two separate ineffective assistance of counsel claims against two different attorneys, but the denial refers only to a single attorney and does not mention either by name. The BIA's discussion regarding Luo's ineffective assistance of counsel claim was clearly referring to his second attorney, and we find that this decision is not so lacking in detail with regard to this attorney as to prevent meaningful review. See Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (holding that an abuse of discretion may be found where the BIA's decision provides no rational explanation, is devoid of any reasoning, or contains only summary or conclusory statements). Further, we agree with BIA that the conduct of this attorney was not so egregious as to affect the fundamental fairness of the proceedings. See Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (holding that a Fifth Amendment ineffective assistance of counsel claim requires a showing that "counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing" (internal quotation marks omitted)). While Luo's second attorney certainly could have submitted a country conditions report on China and a psychological report regarding emotional hardship, submitting those documents would not have been reasonably likely to affect the outcome of the proceeding, and thus, Luo has failed to established prejudice. See Iavorski v. INS, 232 F.3d 124, 128-29 (2d Cir. 2000) (holding that a deprivation of fundamental fairness is established when (1) competent counsel would have acted otherwise, and (2) the alien was prejudiced by counsel's performance); see also United States v. Copeland, 376 F.3d 61, 73 (2d Cir. 2004) ("[P]rejudice is shown where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."(internal quotation marks omitted)). Because Luo failed to establish prejudice, the BIA did not abuse its discretion in denying his motion to remand on this claim.
Luo is correct, nonetheless, that the BIA erred in failing to address his other ineffective assistance claim against his first attorney. However, remand on this claim would be futile because Luo was not prejudiced by any ineffective assistance from his first attorney; indisputably, his own dishonest acts — and not his attorney's representation — caused the denial of his adjustment of status. See Zheng Zhong Chen v. Gonzales, 437 F.3d 267, 270 (2d Cir. 2006) (per curiam) ("[D]ue process does not insulate a petitioner from the consequence of his own dishonest acts."); see also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007) (holding that even if the decision contains errors, it "will not be vacated and remanded if doing so would be futile").
Luo admitted that he knowingly filed a fraudulent I-589 application and lied to an asylum officer under oath because he was told that doing so would be "the easiest way . . . to get status."
For the foregoing reasons, the petition for review is DENIED.