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United States Court of Appeals, Second Circuit.

MING ZHE JIN, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: December 22, 2020

PRESENT: GERARD E. LYNCH, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. FOR PETITIONER: Keith S. Barnett, Esq., New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Mary Jane Candaux, Assistant Director; Remi da Rocha-Afodu, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Ming Zhe Jin, a native and citizen of the People's Republic of China, seeks review of an August 30, 2019, decision of the BIA affirming a February 12, 2018, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ming Zhe Jin, No. A087 568 648 (B.I.A. Aug. 30, 2019), aff'g No. A087 568 648 (Immig. Ct. N.Y. City Feb. 12, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the BIA's decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

The sole issue is whether the BIA erred in rejecting Jin's ineffective assistance of counsel claim because he failed to satisfy the procedural requirements for raising such a claim. We find no error. To prevail on such a claim, a petitioner must show that counsel's performance was deficient and that the deficiency caused prejudice. Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010). In addition, the petitioner must comply with the procedural requirements set out in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). Lozada requires

(1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.

Debeatham, 602 F.3d at 484–85 (quoting Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005)). These requirements “serve to deter meritless claims and to provide a basis for determining whether counsel's assistance was in fact ineffective.” Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007) (internal quotation marks omitted). Jin did not comply or attempt to comply with any of the requirements and has thus forfeited his ineffective assistance claim. Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 47 (2d Cir. 2005) (requiring substantial compliance with Lozada requirements).

We may excuse a lack of strict compliance with the Lozada requirements if the ineffective assistance is “clear on the face of the record,” but Jin's case does not present such a circumstance. Yi Long Yang, 478 F.3d at 142–43 (finding ineffective assistance clear on the record where IJ explicitly relied on counsel's competence and counsel was disbarred shortly after the hearing for his “truly shocking disregard for his clients”). Although the record reflects that Jin's counsel was unfamiliar with Jin's mother's written statement — submitted by a different attorney with Jin's asylum application — the record does not clearly show prejudice because Jin never plausibly explained how his statement could have contained language identical to that found in his mother's statement. According to his own testimony, the two statements had been translated by different people and neither his mother nor her translators had access to his written statement. Given Petitioner's lack of compliance with Lozada, the record does not show how counsel could have addressed this credibility concern or provided an explanation for a document created and filed before he had been retained. See Debeatham, 602 F.3d at 485 (requiring both deficient performance and prejudice to state ineffective assistance claim).

Jin also alleged that his counsel was ineffective in not questioning his sister at the hearing. Absent compliance with Lozada, the BIA had no information about why counsel chose not to question her. It is possible that counsel was unprepared; it is also possible that counsel was concerned her testimony would add inconsistency or otherwise further undermine Jin's claims. See Yi Long Yang, 478 F.3d at 143 (“Lozada requirements ․ provide a basis for determining whether counsel's assistance was in fact ineffective.” (internal quotation marks omitted)). In sum, Jin has forfeited his ineffective assistance claim because he did not comply with the Lozada requirements or show that ineffective assistance was “clear on the face of the record.” Id. at 142–43; see also Jian Yun Zheng, 409 F.3d at 47.

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

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