20

- 2837 Patel v. Garland BIA Christensen , IJ A 2 0 9 433 766 /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 FED ERAL 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.**
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, h**  **eld at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 1**  **3 t**  **h da**  **y of J**  **u n**  **e ,**  **two thousand twenty** 

**- three** 

**.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR. ,**  7 **RAYMOND J. LOHIER, JR. ,**  8 **MYRNA PÉREZ ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **RAKESH KUMAR PATEL, SUSHILABEN**  13 **PATEL, KISHAN PATEL ,**  14 **Petitioner s**  **,** 15 16
**v. 20** 

**- 2837**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER S**  **:** Dalbir Singh , Esq. , Dalbir Singh 24 & Associates, PC , New York , NY

. 25 26 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 27 Attorney General ; Anthony P. 282 Nicastro , Assistant Director ; 1 Ilana J. Snyder , Trial Attorne y , 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, D C. 5

UPON DUE CONSIDERATION of th is 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 DENIED

. 9

Petitioner s Rakesh Kumar Patel (“Patel”) , Sushilaben 10

Patel, and Kishan Patel , native s and citizen s of India , seek 11

review of a n August 14 , 2020 decision of the BIA affirming a 12
September 12, 2018 decision of an Immigration Judge (“IJ”) 13
denying Patel’s application for asylum, withholding of 14
removal, and relief under the Convention Against Torture 15

(“CAT”)

. * In re Rakesh Kumar Pate l , et al. , No. A 2 0 9 433 16

766 /767/768 (B.I.A. Aug. 14 , 20 20 ), aff’g No. A 20 9 433 17

766 /767/768 (Immig. Ct. N.Y. City Sept

. 12 , 2018 ). We assume 18
the parties’ familiarity with the underlying facts and 19
procedural history

. 20

W e review the IJ’s decision as supplemented by the BIA’s 21

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

* We refer primarily to Rakesh Patel as his wife and son were derivative beneficiaries on his application.3 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales , 417 F.3d 1
268, 271 (2d Cir. 2005). The applicable standards of review 2

are well established. “ [T] he admini strative findings of fact 3
are conclusive unless any reasonable adjudicator would be 4
compelled to conclude to the contrary

. ” 8 U.S.C. 5

§ 1252(b)(4)(B) ; see Yanqin Weng v. Holder , 562 F.3d 510, 513 6
(2d Cir. 2009) (reviewing factual findings for substantial 7

e vidence and questions of law and application of law to fact 8

de novo); Chuilu Liu v. Holder , 575 F.3d 193, 196 (2d Cir. 9
2009) (reviewing corroboration findings for substantial 10

evidence). 11
Patel alleged that members of the ruling political party 12

in India attacked and threatened him because of his membership 13
in the Congress Party , an opposing party, and continued to 14

look for him after he left India. We find no error in the 15
agency’s conclusio n that he failed to meet his burden of 16
proof. “ I n determining whether the applicant has met the 17
applicant’s burden, the trier of fact may weigh the credible 18
testimony along with other evidence of record. Where the 19
trier of fact determines that the applic ant should provide 20
evidence that corroborates otherwise credible testimony, such 21
evidence must be provided unless the applicant does not have 224 the evidence and cannot reasonably obtain the evidence.” 8 1

U.S.C. § 1158(b)(1)(B)(ii); Wei Sun v. Sessions , 883 F .3d 23, 2
28 (2d Cir. 2018) (“[I]n some cases . . . an applicant may be 3
generally credible but his testimony may not be sufficient to 4
carry the burden of persuading the fact finder of the accuracy 5
of his claim of crucial facts if he fails to put forth 6

corrob oration that should be readily available.”). In 7
determining whether to deny relief for lack of corroboration, 8
an IJ should identify “ specific pieces of missing evidence 9
and show that it was reasonably available,” provide an 10
opportunity for explanation, an d “assess any explanation 11
given.” Wei Sun , 883 F.3d at 31 (explaining that BIA’s 12
interpretation of § 1158(b)(1)(B)(ii) comports with our 13

decision in Chuilu Liu , 575 F.3d at 198). 14
The agency did not err in concluding that Patel failed 15
to meet his burden because he did not provide any documentary 16
evidence to support his claim. The IJ identified the missing 17

corroboration in the form of country conditions evidence, 18

letters from Patel’s fellow C ongress Party members and his 19
brother, and Patel’s Congress Party identification card

. 20

Cert. Admin. R. 18

- 19

. The evidence was reasonably available 21
either through research (country conditions) or because , as 225 Patel testified , he could have obtain ed letters from his 1
fellow party members and his brother and produced a Congress 2

Party identification card

. Id. The IJ was not required to 3

credit Patel’s explanation that his counsel was mistaken 4
about the hearing date because Patel and his counsel were 5

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

and received written notice five months before the hearing. 7

Id. And Patel did not subsequently produce the corroboration 8
on appeal. 9

Patel ’s ineffective assistance of counsel claim also 10

fails. For remand based on ineffective assistance, Patel had 11
to demonstrate to the BIA “that competent counsel would have 12
acted otherwise and . . . that he was prejudiced by his 13
counsel’s performance.” Rabiu v. INS , 41 F.3d 879, 882 (2d 14

Cir. 1994) (quotation marks omitted). To show prejudice, a 15
petitioner must “ make a prima facie showing that , but for 16
counsel’s ineffectiveness, he would have been eligible for 17

. . . relief , and could have made a strong showing in support 18
of his application.” Scarlett v. Barr , 957 F.3d 316, 326 (2d 19
Cir. 2020) (quotation marks omitted). Patel did not 20

establish prejudice because he did not submit the missing 21
documents (his Congress Party identification card or letter s 226 from fellow party members and his brother) on appeal or 1
identify what evidence he would have submitted but for 2

counsel’s errors . 3
The agency’s conclusion that Patel failed to meet his 4
burden of proof with reasonably available corroboration is 5
dispositive of a sylum, withholding of removal, and CAT relief 6

because all three claims were based on the same factual 7
predicate. See Lecaj v. Holder , 616 F.3d 111, 119 (2d Cir. 8

2010)

. 9
For the foregoing reasons, the petition for review is 10

DENIED

. All pending motions and applications are DENIED and 11

stays VACATED

. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe , 14 Clerk of Court 15