NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0392n.06 Nos. 10-3379, 10-4346
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DAL J I T KAUR, Petitioner,

v.
ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F O R RE V I E W F RO M THE BO ARD OF I MMI GRATI ON APPEAL S

Before: BOGG S and WHITE , Circuit Judges, and B ERTEL SMAN, Distr ict Judge. *

HELE NE N. WHITE , Circuit Judge

. Daljit Kaur petitions for revie w of the BI A’s Marc h 5, 2010 decision dismiss ing her appea l from the I J ’s denial of her ap p l i ca t i ons for asy lum, withholding of remova l and protec tion under the CAT. In a separ ate case , an d re p re s ented by
differ ent counsel, Kaur petitions for revie w of the BIA’s September 28, 2010 decision denying her
motion to reope n. This court g rante d Respondent’s motion to consolidate the two case s for
submissi on. We DENY the pe titions for r eview in both ca ses.
I Daljit Kaur (Ka

ur), a native and citizen of I ndia, enter ed the United States without inspection

on or around Fe bruar

y 9, 1996, and applied for asy lum in Dec ember 1997. After an asy lum office r interviewe d her in November 2000, her application was ref err ed to the I m migr ation Court. On

The Honora

ble Wil liam O. Be rtelsman, United States District J udg e for the Easter n District * of Ke ntucky , sitti ng by

desig nation.Nos. 10-3379, 10-4346

Kaur v. Holder
November 16 , 2000, the I mmigration and Natura liz ation Service (I NS), now the Depa

rtment of
Homeland Security (DHS), filed a Notice to Appea r (NTA) char g ing Kaur as remova ble as an alien

not admitted or parole d afte r ins p ec t i o n by an immigra tion office r. Kaur admitted the NTA alleg ations, co n ce d ed remova bility , and soug ht asy

lum, withholding of remova l, and protec tion
under the Convention Ag ains t T orture (CAT) at a hear ing befor e an I mmigration J udg e (I J ) on
Fe bruar y 22, 2001.
IJ P roce edings
Kaur appea

red befor e an I J for an individual hear ing on J anuar y 17, 2008, afte r which the I J
denied Kaur ’s applications for relief and o rd er ed her remove d to I ndia. The I J ’s May 19, 2008 decision stated in per

tinent part:
The re spondent was bor

n May 1, 1970, in the state of Punjab, I ndia. She is
a Sikh. The responde nt was marrie d in 1991 but has been sep ar ated from her husband since April, 1999. The responde nt and her husband have two children, both of whom are boy s. One was born in I ndia in Dec ember , 1991, the other was born in the United States.
The responde nt testified that her hus b an d was active in the All-I ndia Sikh Student Fe dera

tion. She testified that he beca me involved afte r attending Sad d ar College

. Acc ording to the responde nt, her husband was ar re s t ed on multipl e occa sions due to his political involvement. The last of these arr ests was in November of 1993. He wa s, acc ording to the responde nt, taken to J ag raon police station a fter his arr est wher e he was beate n. She testified that she saw him afte r his arr est, and he was bruised. Af

t er this arr est, the respondent testified t hat her husband decided t o l ea ve I ndia, and he came to the United States. The responde nt testified t h at h er husband never told her about his arr ests or detentions or the rea sons there for. I t is her conclusion that he w as ar rested a s a re sult of his poli tical ac tiviti es. The responde nt testified that afte r her husband left for the United States, she was arr ested two times. T h e fi rs t arrest was on Marc h 9, 1994. The responde nt testified that four or five police came to her home. She, her son, and her mother-inlaw wer e prese nt at the time. Acc ording to the responde nt, the police wer e looking
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Kaur v. Holder
for her husband in connec tion with the death of one or more police o ff i ce rs
. T h e responde nt denied any knowledg e re gar d ing her husband' s wher eabouts. The responde nt testified t hat t he poli ce held her for t hree day s and qu es t i oned and beat her. She also testified u p o n p rom pting from her counsel that she was sexually assaulted by

the police dur ing he r dete ntion. She was appa rently rele ased after her in-laws paid a

bribe to the police

. The responde nt testified that her second arr est occur red on September 15, 1995. On this occa s i o n , t h e responde nt testified that seven or eig ht police office rs came to her home dur ing the dinner hour looking for her husband. The poli ce told her t h at they wer e seeking her husband in connec tion with the killing of a g overnme nt officia l. The responde nt testified that she and her four- y ear -old son wer e taken into c ustody

. Acc ording to the responde nt, he r son was held upside down by one leg while she was questioned. The police threa tened to injure or kill him if she did not cooper ate with them. She testified that they also pushed her around and ag ain sexually assaulted he r. There afte r, the responde nt testified that she decide d to leave I ndia and did so in Fe bruar

y of 1996. She testified that she left without her son (who rema ins in I ndia to this day

) and trave led to Canada , then to the United States, arr iving in Cincinnati, Ohio, on Fe bruar

y 9, 1996. Her asy lum application was filed on Dec ember 4, 1997. The responde nt claims that the police have come to her in-laws’ s i n ce that time looking f or her since she c ame to the United States.
The responde nt has soug ht relief based upon her husband’s political opinion being imputed to her. The responde nt’s asy lum a pplication also asser

ts a claim for asy lum based upon rac e, relig ion, and membership in a particula r social g roup. Howeve r, the responde nt prese nted no evidenc e of any sort to support those claims.

. . . . The first issue wi t h reg ard to any asy lum claim is the cre dibilit y of the claimant. This is particula rly true wher eas here , the responde nt is the only witness, and there is virtually no evidenc e to corr oborate t he responde nt’s claim. The responde nt prese nted herse lf as a fairly cre dible witness. Her demea nor on the witness stand was not indicative of a per son who was be ing de ceptive. T here was, howeve r, a major inconsistency betwee n the responde nt’s asy lum application and her testimony

. The responde nt testified that she was rape d twice during her two detentions. There was no mention of these assaults in her application. The responde nt testified that she did not seek medical trea tment afte r either period of detention even though she claims to ha

ve been sexually assaulted. The responde nt te stified in r esponse to

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Kaur v. Holder
the Gover

nment’s questions that she told her counsel about the rape s as ear ly as 2 0 0 1

. Howeve r, the responde nt did not see fit to ever supplement her asy l u m application to include infor mation about the sexual assaults.
The responde nt testified that she was too embar rasse d to mention the sexual assaults either to a doctor in I ndia or in her asy lum application. Whil e the Court could believe the responde nt’s statements in this reg ard, they did not explain why the fi rst mention of these claimed rape s came during the merit hear ing. Th i s i s o f particula r conce rn since the responde nt claims that s h e re l at ed these events to her counsel near ly seven y ear s ag o. The Court f inds tha t the responde nt’s cre dibilit y is diminis hed by

these omissions.
The responde nt’s case is a lso r ender ed we aker by her f ailure to provide any evidenc e to corr oborate her testimony

. The responde nt has prese nted no documentation to show that her husband ever attended colleg e or that he was ever a member of the All-I ndia Sikh S tudent Fe deration. I ndeed, even though the responde nt lived with her husband f rom the time of her

arr ival in the United States until they separ ated in 1999 (a period of at least three y ear s), the responde nt has not provi d ed a written statement from him to corr oborate any of her testimony

. L ikewise, the responde nt has not filed written statements from her mother or fathe rin-law to support her

testimony . She testified that her in-laws we re pr esent a t both of her arr ests and secur ed her releas e fr o m cu s tody on both occa sions. Whil e the responde nt testified t hat her fathe r-in-la w d i ed in 2002, she has not explained why she did not obtain a written statement from him prior to his death. Such a statement would be particula

rly signific ant as the responde nt testified that h e s ec ured her rele ase f rom jail following e ach of her a rre sts.
The responde nt’s mother-in-la w is appar ently still alive. No written statement fr om her ha s been submitted in support of the re spondent' s application.
The responde nt’s testimony reg arding her two arr ests and detention periods i s v er y gen er al in nature

. Whil e she claims to have been beate n, she provided no detail about those claimed beating s and did not testify reg arding any injuries that she rec eived. She did te stify

that she did not seek medic al treatment upon relea se af ter either a rre st. The respondent has failed to prove that her arre sts and periods of detention wer e due to one of the five fac tors set forth in the statute. This lack of nexus is fata l to the responde nt’s asy

lum claim. The responde nt’s testimony is to the eff ect that she was arr ested by police who wer e seeking her husband beca use of their suspicion that he was involved in killings of police office rs and a g overnme nt o ff i ci al.
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Kaur v. Holder
Gover nments have the rig ht and even the duty to investigate violations of their law. The fact that police may be investigating killing s t h a t appear to be politically motivated does not mean that the arrest of a person who may have information about suspected perpetrators is an arrest on account of the political opinion of the person arrested, nor does it mean t h a t the police have imputed a political opinion of the suspected killer to a witness or to a person whom they believe may have information regarding the whereabouts of a suspecte d killer or killers.
The responde nt only t es t i fi ed that the police arr ested her beca use they appar ently believed she had k n o wl ed g e of her husband’s location. He was the suspect, not the responde nt. Her arr est, under the circ umstances and evidenc e, does not compel the conclusion that she was arr ested beca use the police believed that she share d her husband’s political views. The imputation of her husband ’s political opinion to her is not proven by her te stimony

. Even if the C ourt would find that the respondent was arre sted and detained on acc ount of i mputation of her husband’s political belief s to her, the Court would still not find that the responde nt has proven that she was perse cuted. The responde nt was arr ested and detained on two occa sions eig hteen months apar t. She was detained for a total of five day s acc ording to her testimony

. Although she claims to have been beate n and rape d on eac h occa sion, she never soug ht any medical trea tment afte r her rele ase and has not testified as to any injuries sustained. As the Court has noted above, the responde nt’s cre dibilit y is suspect reg arding her claim of rape that was broug ht forth for the firs t t i m e d uring her testimony in this case
. The evidenc e is insufficient to sustain a claim of perse cution. See Popalli v. Gonzales, 417 F.3d 128 (1st Cir. 2005); Trela

v. Ashcrof

t , 394 F.3d 515 ( 7th Cir. 2005). Having failed to prove past perse cution, the responde nt does not g ain th e benef it of a statutory presumption of a well-founded fe ar o f future perse cution. There fore , the responde nt must prove that she has a subjectively rea l and objectively rea sonable fea

r of future perse cution based upon one of the five cate g ories in the statute. The responde nt has testified that she fea rs returning to I ndia. Howeve r, she has not testified as to exactly why

. The Court can only infer, there fore , that the responde nt fea

rs returning to I ndia based upon the events that she claims as past perse cution. As the Court has fo u n d that evidenc e insufficient to establish past perse cution, the Court finds that it is also insufficient to establish a well-founde d fea r of future perse cution. For the fore g oing rea sons, the Court finds that the responde nt has failed to prove her claim for asy lum under Section 208 of the I mmigra tion and Nationality Act. As the responde nt has failed to prese nt evidenc e sufficie nt to prove her claim for asy lum, she has nece ssarily failed to meet the highe r standard of proof nece ssary to prove her claim for withholding of remova l pursuant to Section 241(b)
-5-Nos. 10-3379, 10-4346

Kaur v. Holder (3) (A) of the I mmigrat i o n an d Nationality Act. L ikewise, the Court finds that the evidenc e prese nted by the responde nt is insufficient to prove that it is more likely than not that she will be subjected to tor t u re by , at the instigation of, or with the acquie scenc e of the g overnme nt of I ndia should she re turn to that country

. AR in 10-3379 at 69-73 (e mphasis added)

. BIA P roce edings
The Boa rd of I mmigration Appea ls (B I A) af fi rm ed the I J ’s decision and dismiss ed her

appea l, finding that the I J “wa s not clea rly err oneous i n d en y ing the responde nt’s applications for

asy lum and withholding of r emoval as the result of he r lac k of cr edibility ,” and tha t the I J ’s
adver se cre dibilit y deter

mination is supported by specific , cog ent rea sons that rela te to issues that g o to the hear t of the responde nt’s claim

. . . [s] pecif ically , the [I J ] noted the signific ant inconsistency betwee n the responde nt’s testimony and asy lum application statement descr i b i ng her trea tment during two detainments by I ndian authorities.

. . Notably missing from her asy lum application statement is any mention of . . . sexual assaults.
AR 3. The BIA further noted that Kaur “utterly failed to reha bilitate her claim with corr oboration,” i.e., she fa iled to pr oduce e vidence corr oborating her husba nd’s af filiation with the All-I ndia Sikh
Student Fede ration, and f ailed to produc e st atement( s) from her in-laws, who were present during
her arr ests and secur ed her rele ase from custody on both occa sions. The BIA also aff irmed the I J ’s
alternative finding that Kaur ’s claim lac ked a ne x us to a protec ted g round. AR 4.
Kaur filed a motion to stay remova l in this court, which this court denied by order filed J une 10, 2010.
I n the meantime, on J une 3, 2010, Kaur , repr esente d by differ ent counsel, filed a motion to

reopen an d rec onsider with the BIA, based on claimed leg al err or and ineffe ctive assistance of
counsel. Kaur ’s motion argued that she was prejudice d by her first counsel’s ineffe ctive assistance , -6-Nos. 10-3379, 10-4346

Kaur v. Holder i.e., hi s failure to file a supplemental I -589 on her behalf, whic h would have c laimed that s he was
twice r aped by

Indian authorities during her detainments in I ndia, despit e having informed him of
these assaults in 2001. Kaur ’s motion also argued that t h e BI A committed leg al err or when it
aff irmed the I J ’s adve rse c redibility finding beca

use, in fac t, the I J made no suc h finding

. The BIA denied Kaur ’s motion to rec onsider as untimely , and denied her motion to reope n

on the merit s , co n cluding that Kaur failed to establish prejudice as a result of her first counsel’s alleg edly defic ient perf

ormanc e, noting that she failed to attach to her motion a copy of her motherin-law’s aff

idavit corr oborating her claims of rape or any other corr oborating documentar y evidenc e. [F]or the following rea sons the Boa rd will deny the responde nt’s motion to reope n. The I mmigra

tion J udg e based his adver se cre dibilit y finding on a signific ant materia l inconsistency betwee n the respondent’s testimony and her asy lum application, and the lack of corr oboration of her claim. See I mmigra tion J udg e’s Dec ision at 5-7. I n her motion, the responde nt raises a claim of ineffe ctive assistance of counsel ag ainst her former attorney

. The responde nt has offe red evidenc e of her compliance with the proce dural require ments for an ineffe ctive assistance of counsel claim b efore the Boa rd. See Pepaj v
. Mukase

y , 509 F.3d 725, 727 (6th Cir. 2007); Matter of Lozada , 19 I &N Dec

. 637, 639 (B I A 1 9 8 8 ). Even if the responde nt has satisfied the proce dural require ments, she al s o must demonstrate that she was prejudice d by ineffe ctive assistance of counsel. See Matter of L o z a da , supra , at 640. A demonstration of prejudice require s the responde nt to establish that but for her former attorney ’s actions, she would have been able to rema in in the United States. See Gishta v
. Gonzales , 404 F.3d 972, 979 (6th Cir. 2005). We find that the responde nt has failed to demonstrate prejudice as a result of her former att o rney ’s alleg edly defic ient perf

ormanc e.
I n her aff idavit, the responde nt states that she “g ave (her former attorney ) an aff idavit from (her ) mother-in-la w and other evidenc e in support of her claim.” She further states that she “re lied on (her former attorney ) to file all ev i d en ce and nece ssary applications with t h e (Immi g ration Court) and to raise all of the proper issues for appea l to the Boa rd of I mmigration Appea ls.” See Respondent’s Affidavit at 1. Wit h this mo t i o n , howeve r, the responde nt has not offe red a copy of her mother-in-la

w’s aff idavit. Nor has she offe red any other corr oborative evidenc e that her former att orney alleg edly failed to proff er in support of her applications for
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Kaur v. Holder
asy lum and withholding of remova l. I ndeed, the responde nt has not offe red any evidence, including new and previously unavailable evidenc e, to corr oborate h er claim and overc ome the I mmigration J udg e’s adver se cre dibilit y fi n d i ng
. See 8 C .F.R. § 1003.2(c) (I ). See also Matter of Coelho , 20 I &N Dee

. 464, 472-73 (B I A 1988) (explaining that a party who seeks a rema nd or to reope n proce eding s to pursue relief bear s a “hea

vy burden” of proving that if proce eding s befor e the I mmigration J udg e wer e reope ned, with all the attendant delay s, the new evidenc e would likely chang e the r esult in the case ).
I n sum, we reje ct the responde nt’ s ineffe ctive assistance of counsel claim. There fore , reope ning based on a cl ai m of ineffe ctive assistance of counsel is not war rante d in this case
. Acc ording ly , the responde nt’s motion to reope n will be denied. The responde nt’s untimely motion to reconsider w ill also be denied. AR in 10-4346 at 3-4 (e mphasis added)

. II - DocketNo. 10-3379
Kaur argues that the I J abused his discretion in finding that her testimony of rape and sexual abuse by the I ndian authoriti es was not cre dible beca use si milar alleg ations wer e not contained in
her 1997 a sy lum application. Kaur also argues that the I J and BI A decisions are not supported by
substantial evidence

. A
Be cause the BIA did not summarily aff irm or expressly adopt the I J ’s rea soning and provided

an explanation for its decision, this cour t re views the BIA’s decision as the final ag ency deter mination. See Ilic-Lee v. Mu ka s ey , 5 0 7 F.3d 1044, 1047 (6th Cir. 2007). The BI A’s factual finding s are revie wed under the defe rential substantial evidenc e standard, and issues of law de novo.
Almuhtaseb v. Gonzales , 453 F.3d 743, 749 (6th Cir. 2006); Khalil i v. Holder , 557 F.3 d 4 29, 435 (6th Cir. 2009). The ultimate question whether an alien has established past perse cution or a wellfounded fea

r of future perse cution is revie wed under the substantial-evidenc e standard. Japarkulov a -8-Nos. 10-3379, 10-4346

Kaur v. Holder

v. Ho l der , 6 1 5 F.3d 696, 702 (6th Cir. 2010). Under this defe rential standard of revie w, “these finding s ‘ar e conc lusive unless any rea sonable a djudicator would be compelled to conclude to the

contra ry .’” Khalil i , 557 F.3d at 435 (quoting 8 U.S.C. § 1252(b)( 4)(B )). The court “ca nnot reve rse such finding s simply

beca use [it] would have de cided them diff ere ntly .” Id. Asylum
An ali en seeking asy lum must establish that she is a ref ug ee as define d in 8 U.S.C. § 1101(a) (42)( A), i.e., a person who is u n ab l e o r u n wi lling to return to her country “bec ause of

perse cution or a well-founde d fea r of perse cution on acc ount of ra ce, relig ion, nationality , membership in a particula r social g roup, or political opinion.” Be cause Kaur ’s application was filed initially befor e May 11, 2005, an adver se cre dibilit y finding “must be based on issues that g o to the
h ea rt of the applicant’ s claim; it cannot be based on an irrele vant inconsistency .” Ndrecaj v. Mukase y , 522 F.3d 667, 674-75 (6th Cir. 2008). I nconsistencies and omissions may form the basis
of an adver se cre dibilit y deter mination if they are substantially rela ted to the asylum claim. Liti v. Gonzales , 411 F.3d 631, 637 ( 6th Cir. 2005).
To demonstrate a we ll-founded fea r of future perse cution, the alien must show that “per secution is a rea sonable probability ” should she be sent back to his home country

. Perkov ic v.
INS , 33 F.3d 615, 620 (6th Cir. 1994). “Well-founded fea r” has “both a subjective and an objective
component: an alien must a ctually fea r that she will be perse cuted upon return to he r country , and
she must prese nt evidenc e establishing an ‘objec tive situation’ under which her fea r can be deeme d

rea sonable.” Id. at 620-21. An a lien need not show tha t she “proba bly will be persecute d if [s] he
is deporte d; ‘[o] ne can cer tainly have a well-founde d fea r of an event happening when there is less
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Kaur v. Holder
than a 50% chanc e of the occur renc e taking place .’” Id. (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 43 1 (1 9 8 7 )). “[She] is not require d to produce evidenc e of perse cution; the alien’s own testimony can be sufficie nt to support an application for asy lum, wher e the testimony is believable , consistent, and sufficie ntly detailed to provide a plausible and coher ent acc ount of the basis for h[er]
fea r.” Id. at 621 (citation and internal quotation marks omitted); see also Ali v

. Ashcroft , 366 F.3d 407, 411 (6th Cir. 2004).
B
This is an unfortunate case
. Kaur has no formal educa tion, speaks littl e Eng lish, and had not

trave led outside her native province , Punjab, befor e she left I ndia to come to the United S t at es
. Kaur ’s first co unsel beg an repr esenting Kaur in 2001, y et in the 7 y ear s he repr esente d Kaur , he
failed to supplement her 1997 as y l u m application (I -589) and failed to timely submit any

corr oborative e vidence in support of her c laim of past per secution.
Even i f Kaur is corr ect that the I J did not make an adver se credibility finding and the BI A
thus err ed in aff

irming an adver se cre dibilit y finding , substantial evidenc e supported the alterna tive finding that the evidence does not compel the conclusion t hat s he was arr ested because the pol ice
believed she share d her husband’s political views. As the I J noted, the fac t that Punjabi police may be investigating crimes that appea red to be politically

motivated does not mean tha t the arr est of a
p er s on who may have information about suspected perpe trators is an arr est on acc ount of the

arr estee ’s political opinion or that the police imputed the political opinion of the suspected killer to
the ar restee

.

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Kaur v. Holder
I t is quite possible, as the I J and BIA conclude d, that Kaur ’s tw o d et en t i ons by I ndian
authorities wer e prompted by their criminal investiga tion of deaths, and suspicio n t h at Ka u r’s
husband was involved there in. See Pablo-Sanche z v. Holder , 6 0 0 F.3d 592, 595 (6th Cir. 2010) (stating that, wher e it is possible to draw contra ry conclusions from the evidence, this court is not permitted to second g uess the BI A’s decision on the matter); Mohamme d v. Keisler , 507 F.3d 369, 371 (6th Cir. 2007) (same ). The r ecor d does not compel a conclusion contra

ry to the BI A’s.
Withhol din g of Rem oval and CAT
Be cause Kaur cannot show that the rec ord compels a contra ry conclusion reg arding her

asy lum claim, she cannot show that it does so with respe ct to her claim for withholding of remova l. See, e.g. , Dorosh v. Ashcroft , 398 F.3d 379, 383-84 (6th Cir. 2004) (“Since [t he petitioner] did not
meet the burden o f p ro of for asy lum, she cannot meet the clea r probability standard nece ssary for

a g ranting of withholding of remova l.”).
The basis for Kaur ’s reque sts for asy lum and withholding of remova l is also the basis for her

reque st for relief under CAT. Her failure to car ry her burden on asy lum and withholding is fata l to
her c laim for re lief under CAT. See, e .g. , Y

u v. Ashcroft , 364 F.3d 700, 703 n.3 ( 6th Cir. 2004).
For the above rea sons, we DEN Y Kaur ’s petition for re view.

III - DocketNo. 10-4346 - M otion to Reopen
Kaur does not appea l the BI A’s denial o f h er m o tion to rec onsider, only the denial of her
motion to reope n. This court revie ws the Boa rd’s decision to deny a motion to reope n for abuse of discretion, Sako v. Gonzales , 434 F.3d 857, 863 (6th Cir. 2006), looking to whether the BIA’s denial

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Kaur v. Holder

was made without a rational explanation, inexpl icably depar ted from established policies, or rested

on an impermissible basis such as invidious discrimination ag ainst a particula r rac e or g roup. Id.
A succe ssful motion to reope n due to ineffe ctive assistance of counsel befor e the BIA must satisfy two conditions. First the claim must prese nt the fac ts require d by Matter of Lozada , 19 I

. & N. De c. , 637, 639 (B I A 1988). Br iefly , the Lozada require ments are (1) that the motion be supported by an aff idavit detailing counsel’s failing s, (2) that counsel be informed of the alleg ations, and (3) that the motion show that disciplinary

char g es have been f

iled with the appropr iate author ity

. Second, the BIA req u i re s t h at [Kaur] “must also show that

. . . she was prejudice d by

the ac tions or inactions of counse l.” . . . . [Kaur] “ca

rries the burden of establishing t hat ineffe ctive assistance of counsel prejudice d [her] or denied [her] fundame ntal fairne ss in order to prove that [s] he has suffe red a denial of due proce ss.” Huicoche a-Gome z v. INS , 237 F.3d 696, 699 (6th Cir. 2001)
Sako , 434 F.3d at 8 6 3

. W e re v i ew d e novo the question whether the alien car ried her burden of establishing that ineffe ctive assistance of counsel prejudice d her or denied her fundame ntal fairne ss.
Id. We ag ree with the BI A that Kaur

failed to show pr ejudice.
Kaur ’s secon d counsel argues that had it not been for first counsel’s failure to file the supplemental I -589 application and statement, the I J would have found that Kaur suffe red past

perse cution. We cannot ag ree
. We understand fr o m t h e I J ’s opinion that, even if Kaur ’s 1997 application had reve aled that she was twice rape d by Indian authorities, or if Kaur ’s first counsel had
submitt ed a supplemental application to that eff ect, her claim of past perse cution would have failed. Although Kaur ’s second counsel is corr ect that neither the BI A nor the I J stated whether the rape s,

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Kaur v. Holder
if they occur

red, amounted to perse cution, even if such a de termination had been m ade, Kaur stil l
would have failed to establish that the perse cution was on acc ount of a statutorily protec ted g round.
As to Kaur’ s Motion to R eopen, w e are at a loss to understand why Kaur ’s second counsel failed to submit any

corr oborative e vidence there with. Notwithstanding this unfortunate state of a ffa irs, in the final ana ly sis it cannot be s aid t hat
the BIA’s denial of Kaur ’s motion to reope n was arbitra ry , irrational, or capr icious. Kaur failed to

prese nt evidenc e demonstrating that, had she supplemented her asy lum app l i cation or submitt ed

corr oborating evidenc e, she would have demonstrated t h at h er fear of persecution was based on a protec ted g round.
For these re asons, we D ENY both petitions for re view.

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