20

- 18 55 Singh v. Garland BIA A 20 6 443 847 

### 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**  **ELECTR ONIC 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marsha**  **ll** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **1 s**  **t da**  **y of N**  **o v**  **e m**  **b e**  **r ,**  **two thousand twenty** 

**** 4 **two**

**.** 5 6 **PRESENT:** 7 **JOSEPH F. BIANCO ,**  8 **BETH ROBINSON ,**  9 **MYRNA PÉREZ ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **GURDEV SINGH ,**  14 **Petitioner ,**  15 16
**v. No.**  **20**

**- 18**  **55** 17 **NAC** 18 **MERRICK B. GARLAND, UNITED**  19 **STATES ATTORNEY GENERAL**  **,** 20 **R espondent** 

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Jagbir S. Terkiana , San Jose , CA

. 24 25 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 26 Attorney General; Greg D. Mack, 27 Senior Litigation Counsel ; Margot 28 L. Carter , Senior Litigation 292 Counsel , Office of Immigration 1 Litigation , United States 2 Department of Justice, Washington, 3 DC. 4 5 U PON 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 petitio n for review 8

is GRANTED

. 9

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

seeks review of a May 2 1 , 2020 decision of the BIA d enying 11
his motion to reopen his removal proceedings based on 12

ineffective assistance of counsel

. In re Gurdev Singh , No. 13

A 20 6

- 443

- 847 (B.I.A. May 21 , 2020 )

. We assume the parties’ 14
familiarity with the underlying facts and procedural history. 15

Our review is limited to the BIA’s denial of reopening 16
because Singh timely petitioned for review of only that 17

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

F.3d 83, 89

– 90 (2d Cir. 2001). In considering challenges to 19
the BIA’s denial of reopening , “we review the factfinding 20

below for abuse of discretion” and “we review de novo 21
constitutional claims and questions of law.” See Luna v. 22

Holder , 637 F.3d 85, 102

— 03 (2d Cir. 2011). 23
In the removal proceeding context, “ [ i] neffective 24
assistance of counsel . . . occurs when counsel’s performance 253 impinged upon the fundamental fairness of the hearing in 1
violation of the fifth amendment due process clause [ , ] ” that 2

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

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

Iavorski v. INS , 232 F.3d 124, 128

– 29 (2d Cir. 2000) (internal 5
quotation marks omitted)

. 6

The BIA err ed in concluding that Singh failed to 7

establish ineffective assistance of counsel

. The immigration 8
judge (“IJ”) found that Singh was not credible because h e 9

claimed in his asylum application that he stopped working as 10

a farmer in India in June of 2013 and t hat he left India in 11
July of 2013. Th ese dates contradicted one of the central 12

claims in Singh’s various petitions for relief: that he was 13
attacked in India in August of 2013. Singh testified to the 14
IJ that he departed India in September of 2013. When t he IJ 15
flagged that this testimony was inconsistent with the dates 16
provided in his asylum application, Singh testified that he 17
did not understand, could not explain the discrepancy, and 18
reiterated that he left India in September of 2013. Singh’s 19
testimony that he was attacked in August of 2013 and fled 20
India in September of 2013 is consistent with a written 21
declaration provided by Singh in this matter, the oral 224 testimony he gave during his credible fear interview, 1
affidavits from family members, and an affidavit of a 2
physician who claims to have treated Singh for “[b]lunt 3
injuries of back and legs and nasal bleedings” in a hospital 4
in Jalmana, India on August 18, 20 13. 5
Singh’s former counsel, Mukta Chand (“Chand”) inform ed 6

the IJ that the June and Jul y dates in the asylum application 7
were errors. The IJ rejected this explanation, found Singh’s 8
testimony about the attacks in India to lack credibility, and 9
denied asylum, withholding of removal, and CAT relief. Singh 10
appealed, but the BIA affirmed the IJ ’s decision. Singh did 11
not petition for review in this Court. 12
Instead, Singh filed a timely motion to reopen with the 13
BIA, arguing that his former counsel , Chand, was ineffective. 14
As is relevant here, Singh alleges that he knew Chand had 15

entered incor rect dates in his asylum application concerning 16
the end of his employment and his departure from India, that 17

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

to do so. In response to the bar complaint that Singh filed 19
against her , Chand claims that Singh himself provided her 20
with the disputed dates , and that she simply relied on Singh’s 21
representations. 225 The BIA denied Singh’s motion to reopen, finding that he 1

did not persuasively demonstrate that Chand introduced the 2
alleged errors into the application

. The BIA weighed Singh’s 3
allegations in his motion against Chand’s statements and the 4
fact that Singh swore at his immigration hearing that the 5
contents of his applica tion were read to him in his native 6
language and were correct. The BIA credited Chand’s version 7
of events and concluded that because Singh gave Chand the 8

incorrect dates, he did not suffer from ineffective 9

assistance of counsel. 10

While the BIA did not abuse its discretion in crediting 11
Chand’s version of events over Singh’s, the BIA erred as a 12

matter of law in concluding that Singh had not established 13

that he received ineffective assistance of counsel

. E ven 14
assuming that Chand’s version of events is accurate, Chand ’s 15
representation of Singh was inadequate

. In Chand’s telling, 16
Singh provided her with incorrect dates , and she simply 17

recorded those dates in the application notwithstanding that 18
the dates plainly rendered his timeline impossible. She the n 19
realized during the IJ hearing that the dates were erroneous, 20
and argued in her brief on appeal to the BIA that the dates 21
included in the asylum application were erroneous . 226 Chand’s failure to address the plainly inconsistent dates 1

to fix what she herse lf claims were errors renders her 2
performance incompetent. Competent counsel would have 3
realized when preparing the application , and in preparing for 4
the hearing , that the dates included in the asylum application 5

did not make sense . Competent counsel wou ld have recognized 6
that one cannot have fled India in July of 2013 and then have 7

be en attacked in India in August of 2013. Competent counsel 8

would have worked with their client to confirm the correct 9
timeline and fix the error before submitting the applic ation

. 10

While even “ unwise ” tactical or strategic decisions “that 11
ultimately fizzle and redound to the client’s detriment” do 12

not necessarily constitute ineffective assistance of counsel, 13
see Jiang v. Mukasey , 522 F.3d 266, 270

– 71 (2d Cir. 2008) , 14
there is no possible strategic or tactical reason for allowing 15
a client to submit an asylum application that presents a 16
timeline that is facially impossible. And w hile an attorney 17
can be forgiven for overlooking minor inconsistencies, an 18
attorney’s fail ure to flag and resolve a factual error that 19
renders their client’s claims for relief incomprehensible is 20

the kind of mistake that “self

- evident[ly]” constitutes 21

ineffective assistance of counsel. Cf. Aris v. Mukasey , 517 227 F.3d 595, 596 (2d Cir. 2008) (exp laining that it is “self

1
evident” that failing to properly advise a client as to the 2
date of their immigration hearing constitutes ineffective 3

assistance of counsel). 4
Chand’s failure to flag and resolve the mistaken dates, 5
furthermore, plainly prejudiced Singh. As the government 6

concedes , the IJ based the adverse credibility finding solely 7
on the inconsistency between Singh’s testimony regarding the 8
August 2013 attack and the dates listed in Singh’s asylum 9
application

. Singh has therefore established that he was 10
deprived of effective assistance of counsel during his 11
removal proceedings in violation of his due process rights

. 12

See Iavorski , 232 F.3d at 128

– 29

. 13
For the foregoing reasons, the petition for review is 14

GRANTED

. The BIA’s decision is VACATED, and the case is 15
REMANDED to the BIA for proceedings consistent with this 16

order. 17

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