Nos. 07-4581-ag (L), 08-3111-ag (Con).United States Court of Appeals, Second Circuit.
April 29, 2009.
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UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Theodore N. Cox, New York, NY, for Petitioners.
Gregory G. Katsas, Assistant Attorney General; Leslie McKay, Assistant Director; Jessica Segall, Trial Attorney, Civil Division, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
PRESENT: Hon. PIERRE N. LEVAL, Hon. B.D. PARKER and Hon. PETER W. HALL, Circuit Judges.
SUMMARY ORDER
Petitioners Dai Kuo Yung and Su Wen Ke, natives and citizens of the People’s Republic of China, seek review of the September 27, 2007 order of the BIA denying their motion to reconsider In re Dai Kuo Yung, Su Wen Ke, No. A72 461′ 677/8 (B.I.A. Sep. 27, 2007).[2] We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion reconsider for abuse of discretion. See Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105, 106 (2d Cir. 2005). “An abuse of discretion may be found . . . where the [BIA’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. US. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289
(2d Cir. 2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
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The procedural history of this case is complex. Ultimately, however, Petitioners seek review of the denial of their motion to reconsider in which they alleged that their attorney was ineffective because he had failed to timely file an appeal of the IJ’s denial of their asylum application. The BIA held that any ineffective assistance did not merit relief because the Petitioners had failed to demonstrate prejudice. In order to prevail on a claim of ineffective assistance of counsel, the alien must show that competent counsel would have acted otherwise, and that he or she was prejudiced by counsel’s performance. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993). To demonstrate that an “attorney’s failure to file caused [a petitioner] actual prejudice, he must make a prima facie showing that he would have been eligible for the relief and that he could have made a strong showing in support of his application.” Rabin, 41 F.3d at 882. Here, the BIA found that petitioners had not been prejudiced by their attorney’s untimely filing of their appeal of the IJ’s denial of their application for asylum because they had not established past persecution or a well-founded fear of future persecution.
In our last decision in this case, we remanded to afford the BIA an opportunity to explain its past persecution analysis See Dai Kuo Yung v. BCIS, 216 Fed.Appx. 30, 31-32 (2d Cir. 2007) (Summary Order). We now find that the BIA properly determined that Petitioners’ claims of past abuse were not severe enough to rise to the level of persecution.[3] See Ivanishvili v. U.S. Dep’t, 433 F.3d 332, 342 (2d Cir. 2006). The BIA properly weighed in the context in which they occurred, the unfulfilled threats of forced abortion, minor beatings, job loss, and loss of property Petitioners described. The BIA’s conclusion that they were insufficient to constitute persecution was not clearly erroneous. See Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).
We also find no error in the BIA’s conclusion that Petitioners failed to demonstrate a well-founded fear of persecution in China on account of their U.S.-born children. While Petitioners argue that the BIA failed to adequately analyze the evidence they presented, that argument is belied by the record. In its decision, the BIA correctly identified all of the documents in the record, and noted that it had considered all of that evidence in Matter of J-H-S-, 24 I. N. Dec. 196
(BIA 2007), Matter of J-W-S-, 24 I. N. Dec. 185
(BIA 2007), and Matter of S-Y-G- 24 I. N. Dec. 247 (BIA 2007). We recently
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found no error in the BIA’s analysis of these cases See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-44 (2d Cir. 2008). Petitioners in this case rely on the same evidence we discussed in Jian Hui Shao, and advance no argument that would compel us to reach a different conclusion in this case. See id.; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006).
Because the BIA’s finding that Petitioners failed to establish past persecution or a well-founded fear of future persecution was supported by substantial evidence, the BIA properly found that they were not prejudiced by their attorney’s untimely filing of their appeal. Rabin, 41 F.3d at 882. Accordingly, it was not an abuse of discretion for the BIA to deny the Petitioners’ motion to reconsider. Ke Zhen Zhao, 265 F.3d at 93.
For the foregoing reasons, the petition for review is DENIED. The pending request for oral argument in this petition is DENIED.