20-2837

Patel v. Garland

BIA

Christensen, IJ

A209 433 766/767/768

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 United 

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

on the 13th 4 day of June, two thousand twenty-three.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 RAYMOND J. LOHIER, JR.,

9 MYRNA PÉREZ,

10 Circuit Judges.

11 _____________________________________

12

13 RAKESH KUMAR PATEL, SUSHILABEN 

14 PATEL, KISHAN PATEL,

15 Petitioners,

16

17 v. 20-2837

18 NAC

19 MERRICK B. GARLAND, UNITED

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONERS: Dalbir Singh, Esq., Dalbir Singh 

25 & Associates, PC, New York, NY.

26

27 FOR RESPONDENT: Brian Boynton, Acting Assistant

28 Attorney General; Anthony P. 
2

1 Nicastro, Assistant Director; 

2 Ilana J. Snyder, Trial Attorney, 

3 Office of Immigration Litigation, 

4 United States Department of 

5 Justice, Washington, DC.

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 DENIED.

10 Petitioners Rakesh Kumar Patel (“Patel”), Sushilaben 

11 Patel, and Kishan Patel, natives and citizens of India, seek 

12 review of an August 14, 2020 decision of the BIA affirming a 

13 September 12, 2018 decision of an Immigration Judge (“IJ”) 

14 denying Patel’s application for asylum, withholding of 

15 removal, and relief under the Convention Against Torture 

16 (“CAT”).* In re Rakesh Kumar Patel, et al., No. A209 433

17 766/767/768 (B.I.A. Aug. 14, 2020), aff’g No. A209 433

18 766/767/768 (Immig. Ct. N.Y. City Sept. 12, 2018). We assume

19 the parties’ familiarity with the underlying facts and

20 procedural history.

21 We review the IJ’s decision as supplemented by the BIA’s 

22 decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 

* We refer primarily to Rakesh Patel as his wife and son were 

derivative beneficiaries on his application.
3

1 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 

2 268, 271 (2d Cir. 2005). The applicable standards of review 

3 are well established. “[T]he administrative findings of fact 

4 are conclusive unless any reasonable adjudicator would be 

5 compelled to conclude to the contrary.” 8 U.S.C. 

6 § 1252(b)(4)(B); see Yanqin Weng v. Holder, 562 F.3d 510, 513 

7 (2d Cir. 2009) (reviewing factual findings for substantial 

8 evidence and questions of law and application of law to fact 

9 de novo); Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 

10 2009) (reviewing corroboration findings for substantial 

11 evidence).

12 Patel alleged that members of the ruling political party 

13 in India attacked and threatened him because of his membership 

14 in the Congress Party, an opposing party, and continued to 

15 look for him after he left India. We find no error in the 

16 agency’s conclusion that he failed to meet his burden of 

17 proof. “In determining whether the applicant has met the 

18 applicant’s burden, the trier of fact may weigh the credible 

19 testimony along with other evidence of record. Where the 

20 trier of fact determines that the applicant should provide 

21 evidence that corroborates otherwise credible testimony, such 

22 evidence must be provided unless the applicant does not have 
4

1 the evidence and cannot reasonably obtain the evidence.” 8 

2 U.S.C. § 1158(b)(1)(B)(ii); Wei Sun v. Sessions, 883 F.3d 23, 

3 28 (2d Cir. 2018) (“[I]n some cases . . . an applicant may be 

4 generally credible but his testimony may not be sufficient to 

5 carry the burden of persuading the fact finder of the accuracy 

6 of his claim of crucial facts if he fails to put forth 

7 corroboration that should be readily available.”). In 

8 determining whether to deny relief for lack of corroboration, 

9 an IJ should identify “specific pieces of missing evidence 

10 and show that it was reasonably available,” provide an 

11 opportunity for explanation, and “assess any explanation 

12 given.” Wei Sun, 883 F.3d at 31 (explaining that BIA’s 

13 interpretation of § 1158(b)(1)(B)(ii) comports with our

14 decision in Chuilu Liu, 575 F.3d at 198). 

15 The agency did not err in concluding that Patel failed 

16 to meet his burden because he did not provide any documentary 

17 evidence to support his claim. The IJ identified the missing 

18 corroboration in the form of country conditions evidence, 

19 letters from Patel’s fellow Congress Party members and his 

20 brother, and Patel’s Congress Party identification card. 

21 Cert. Admin. R. 18-19. The evidence was reasonably available

22 either through research (country conditions) or because, as
5

1 Patel testified, he could have obtained letters from his 

2 fellow party members and his brother and produced a Congress 

3 Party identification card. Id. The IJ was not required to 

4 credit Patel’s explanation that his counsel was mistaken 

5 about the hearing date because Patel and his counsel were 

6 informed of the hearing in person a year before the hearing 

7 and received written notice five months before the hearing. 

8 Id. And Patel did not subsequently produce the corroboration 

9 on appeal.

10 Patel’s ineffective assistance of counsel claim also 

11 fails. For remand based on ineffective assistance, Patel had 

12 to demonstrate to the BIA “that competent counsel would have 

13 acted otherwise and . . . that he was prejudiced by his 

14 counsel’s performance.” Rabiu v. INS, 41 F.3d 879, 882 (2d 

15 Cir. 1994) (quotation marks omitted). To show prejudice, a 

16 petitioner must “make a prima facie showing that, but for 

17 counsel’s ineffectiveness, he would have been eligible for 

18 . . . relief, and could have made a strong showing in support 

19 of his application.” Scarlett v. Barr, 957 F.3d 316, 326 (2d 

20 Cir. 2020) (quotation marks omitted). Patel did not 

21 establish prejudice because he did not submit the missing 

22 documents (his Congress Party identification card or letters
6

1 from fellow party members and his brother) on appeal or 

2 identify what evidence he would have submitted but for 

3 counsel’s errors. 

4 The agency’s conclusion that Patel failed to meet his 

5 burden of proof with reasonably available corroboration is 

6 dispositive of asylum, withholding of removal, and CAT relief 

7 because all three claims were based on the same factual 

8 predicate. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 

9 2010).

10 For the foregoing reasons, the petition for review is 

11 DENIED. All pending motions and applications are DENIED and 

12 stays VACATED.

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe,

15 Clerk of Court