NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0895n.06

No. 13-4336

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CONSOLATA JEPKORIR KISANG,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

BEFORE: SILER, SUTTON, and STRANCH, Circuit Judges.

PER CURIAM. Consolata Jepkorir Kisang, a citizen of Kenya, petitions through counsel 

for review of an order of the Board of Immigration Appeals (BIA) denying her motion to reopen 

her removal proceeding.

Kisang was born in Kenya in 1981. She attended Eastern Michigan University on an 

athletic scholarship with a student visa. After her graduation, she became removable for failing 

to maintain student status. She was scheduled for a hearing before an immigration judge (IJ), but 

did not attend. She alleged that she was suffering from severe morning sickness while pregnant 

with her second child. She testified that she and her husband panicked about missing the 

hearing, and decided to submit an application for asylum, in which she alleged that she feared 

returning to Kenya because of violence between tribes. She reported in the application that her 

parents and two siblings were deceased. Kisang was ordered removed to Kenya in absentia. She 

subsequently succeeded in having her proceeding reopened. She submitted a new asylum 
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application, now alleging that she feared persecution based on her political opinion, religion, and 

gender, noting that she feared that she and her daughter would be subjected to female genital 

mutilation. In this application, Kisang reported that her mother and two siblings were living, and 

that her father and two other siblings were deceased. Kisang appeared for a merits hearing 

before the IJ, who noted the discrepancies between the two applications. Kisang’s counsel stated 

that he had not seen the first application before. The hearing was continued to allow Kisang to 

consult with her attorney and address the discrepancies. At the continued hearing, Kisang 

testified that her first application did not include all of her claims because she was ill and 

panicked and allowed her husband to fill out the application. She also explained that he did not 

know her family. The IJ denied all relief and found that Kisang had submitted a frivolous 

application. The IJ’s decision was upheld by the BIA and this court.

Kisang next moved to reopen her proceeding on the ground of ineffective assistance of 

counsel. She argued before the BIA that her attorney should have advised her not to file for

asylum because her application was untimely, and should have prepared her to address the 

discrepancies between her two applications. She argued that her attorney’s performance 

prejudiced her because, due to the finding that she filed a frivolous application, she was now 

ineligible for a U visa, granted to applicants who have been the victims of crime and have 

cooperated in the conviction of the criminals responsible. Kisang had applied for a U visa based 

on her husband’s conviction of domestic violence against her, but because of the finding that she 

filed a frivolous asylum application, she is ineligible for any relief. The BIA rejected her 

arguments and denied the motion to reopen. Kisang repeats her arguments before this court.

We review the denial of a motion to reopen removal proceedings for an abuse of 

discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). We find no abuse of 
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discretion in the BIA’s conclusion that Kisang has not demonstrated ineffective assistance of 

counsel. She argues that her attorney did not prepare her to address the discrepancies between 

her two applications at the hearing. However, Kisang bears the responsibility for failing to 

reveal the falsehoods in her applications to counsel. See Lazar v. Gonzales, 500 F.3d 469, 476 

(6th Cir. 2007). Kisang attempts to distinguish her situation from Lazar by arguing that Lazar 

admitted lying in his applications, which she has not done. The IJ rejected Kisang’s attempted 

explanation of the discrepancies and found that Kisang had fabricated the claims in her second 

application. Although she continues to deny this, she is still responsible for her failure to be 

candid with her attorney and show him her original application. Kisang also argues that her 

counsel was ineffective in allowing her to file an untimely asylum application. The record shows 

that counsel made plausible arguments to excuse the untimely filing, including that conditions in 

Kenya had worsened and that Kisang had been attempting to maintain her status by applying for 

graduate school and the diversity visa lottery. Under these circumstances, counsel was not 

ineffective in advising Kisang that her chances of relief were better with an asylum claim than 

with an application for withholding of removal, which has a higher threshold of eligibility. 

Moreover, even if Kisang had withdrawn her application for asylum, it could still have been the 

basis for a finding of a frivolous filing. See id.

Kisang has not shown that, but for the alleged ineffectiveness of her former counsel, she 

would have been entitled to continue residing in the United States. See Sako v. Gonzales, 

434 F.3d 857, 864 (6th Cir. 2006). Even if she had abandoned her asylum claim, she would not 

have been granted relief in the proceeding under review, and she may have still been found to 

have filed a frivolous application. Because Kisang has not shown any abuse of discretion by the 
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BIA in the denial of her motion to reopen her removal proceeding, we deny her petition for 

review.