12-3719

Quan v. Holder

BIA

Vomacka, IJ

A087 438 579 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 26th day of September, two thousand thirteen.

PRESENT:

DENNIS JACOBS,

Chief Judge,

JON O. NEWMAN,

GERARD E. LYNCH,

Circuit Judges. 

_____________________________________

QINGZI QUAN,

Petitioner, 

 v. 12-3719

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Jay Ho Lee, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Shelley R. Goad,

Assistant Director; Elizabeth R.

Chapman, Trial 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.

Qingzi Quan, a native and citizen of the People’s

Republic of China, seeks review of an August 22, 2012,

decision of the BIA affirming the February 8, 2010, decision

of Immigration Judge (“IJ”) Alan Vomacka, which denied her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”); and denying

her motion to remand based on ineffective assistance of

counsel. In re Qingzi Quan, No. A087 438 579 (B.I.A. Aug.

22, 2012), aff’g No. A087 438 579 (Immig. Ct. N.Y. City Feb.

8, 2010). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Because petitioner challenges only the BIA’s denial of

remand and does not challenge the pretermission of her

asylum application as untimely or the denial of CAT relief,

we address only whether the BIA abused its discretion by

denying petitioner’s motion for remand to apply for

withholding of removal based on her practice of

Christianity. See Yueqing Zhang v. Gonzales, 426 F.3d 540,

545 n.7 (2d Cir. 2005) (issues not raised in an opening

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brief are considered waived); Li Yong Cao v. Dep’t of

Justice, 421 F.3d 149, 151 (2d Cir. 2005) (reviewing denial

of remand for abuse of discretion). “An abuse of discretion

may be found in those circumstances where the Board’s

decision provides no rational explanation, inexplicably

departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory

statements; that is to say, where the Board has acted in an

arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t

of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal

citations omitted). 

To obtain remand based on ineffective assistance of

counsel, a movant must establish that “counsel’s performance

was so ineffective as to have impinged upon the fundamental

fairness of the hearing.” Jian Yun Zheng v. U.S. Dep’t of

Justice, 409 F.3d 43, 46 (2d Cir. 2005); see also Rabiu v.

INS, 41 F.3d 879, 882 (2d Cir. 1994). This includes a

showing that competent counsel would have acted otherwise

and that counsel’s performance resulted in actual prejudice

to the petitioner. See Debeatham v. Holder, 602 F.3d 481,

486 (2d Cir. 2010); Esposito v. INS, 987 F.2d 108, 111 (2d

Cir. 1993).

3
Contrary to petitioner’s contention, the BIA did not

engage in impermissible fact-finding when it independently

assessed the merits of petitioner’s claim to relief based on

her religious affiliation. While the BIA may not engage in

independent fact-finding in the course of deciding appeals,

see 8 C.F.R. § 1003.1(d)(3)(iv), we have recognized that

fact-finding is necessary when evaluating motions to reopen

or remand because that process requires consideration of

allegedly new or previously unavailable evidence. See Jian

Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Li

Yong Cao, 421 F.3d at 156-59. The BIA’s determination on

this point was a necessary part of evaluating whether

petitioner was prejudiced by her former counsel’s actions. 

Furthermore, the BIA did not err in denying

petitioner’s motion to remand to the IJ in order to assess

whether she should be granted relief from removal due to her

religious affiliation. In denying the motion, the BIA

reasonably relied on inconsistencies in the record before it

regarding petitioner’s conversion to Christianity and the

lack of evidence that she would be subject to persecution. 

The BIA also reasonably relied on the IJ’s underlying

adverse credibility determination, see 8 U.S.C.

4
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008). Thus the BIA did not abuse its

discretion in declining to remand, see Jian Hui Shao, 546

F.3d at 168 (noting that burden on applicant is heavier on

motion to reopen and applicant must show that “proffered new

evidence would likely alter the result in her case.”).

Petitioner’s reliance on Paul v. Gonzales, 444 F.3d 148

(2d Cir. 2006), to challenge the BIA’s consideration of the

underlying adverse credibility determination is misplaced. 

In Paul, we held that the BIA abused its discretion by

denying a motion to reopen based on changed country

circumstances, where, despite an adverse credibility

finding, the IJ had explicitly credited the movant’s

assertion regarding his religious affiliation that would

likely result in persecution. Id. at 152–55. Here, unlike

in Paul, the IJ did not find any aspect of petitioner’s

testimony credible, and the BIA reasonably relied on this

general adverse credibility finding (along with other

evidence) to find that petitioner did not adequately

establish her religious affiliation. See Qin Wen Zheng v.

Gonzales, 500 F.3d 143, 146–49 (2d Cir. 2007) (holding a

general adverse credibility finding may justify a decision

to reject other claims). 

5
Because petitioner’s assertion of ineffective counsel

is based upon her former counsel’s failure to raise her

religious affiliation as grounds for relief, this claim also

fails as the basis for remand. Even had prior counsel

requested relief based on petitioner’s religious

affiliation, the BIA has determined this claim would have

failed. Because a claim of ineffective counsel requires a

showing of prejudice, Jian Yun Zheng, 409 F.3d at 46, where,

as here, the allegedly ineffective conduct would not have

affected the ultimate outcome of the proceedings, that claim

fails.

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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