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Wang v. INS, 367 F.3d 25, 1st Cir. (2004)
Wang v. INS, 367 F.3d 25, 1st Cir. (2004)
Wang v. INS, 367 F.3d 25, 1st Cir. (2004)
3d 25
Jules E. Coven, with whom Matthew L. Guadagno and Bretz & Coven,
LLP were on brief for petitioner.
Laura L. Flippin, Attorney, Office of Immigration Litigation, with whom
Peter D. Keisler, Assistant Attorney General, and Emily Anne Radford,
Assistant Director, and Andrew M. Eschen, Attorney, Office of
Immigration Litigation, were on brief for respondent.
Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and
LIPEZ, Circuit Judge.
CYR, Senior Circuit Judge.
In June 2000, an immigration judge (IJ) denied Wang's application for asylum,
and Wang appealed to the Board of Immigration Appeals (BIA). While the BIA
appeal was pending, Wang hired new counsel, who submitted a motion to
remand the case to the IJ based upon a "new set of circumstances": China likely
would require that Wang or his wife undergo forced sterilization under the "One
Child Policy" which seeks to control the rate of China's population growth
because the couple already had two children.1
3
The BIA denied the Wang appeal, as well as his remand motion, on the ground
that (i) the birth of the second child did not constitute "new evidence," but
instead had occurred prior to the June 2000 exclusion hearing, and (ii) Wang
had provided no testimony before the IJ that he harbored any fear of coerced
sterilization.
Once again Wang retained new counsel, who submitted a motion to reopen and
a second motion to remand with the BIA, contending that Wang's previous
attorneys, who were well aware that Wang had children, rendered ineffective
assistance of counsel by failing to pursue the alternate sterilization defense
before the IJ.2 In June 2003, the BIA denied both motions on two alternative
grounds. First, Wang failed to satisfy the threshold procedural requirement that
he submit an affidavit setting forth the particular agreement between himself
and his former counsel regarding the scope of counsel's representation. Second,
the Wang affidavit neither established that any prejudice resulted to his case
from any omission on the part of his former counsel, nor that there was a
sufficient likelihood that he would be subjected to forced sterilization in the
event he were to be returned to China. Wang petitions for review of the June
2003 decision entered by the BIA.
The affidavit submitted by Wang stated, in pertinent part, that his former
counsel
never asked me questions about family planning conditions in China. They only
asked if I was married and if we had children. They did not mention to me that
conditions in China were arguments they could make for me in my [asylum]
petition. They never asked about what happens in China when a wife who
already has children becomes pregnant, about whether we wanted to have more
children, or whether we feared being sterilized if we were sent back.... They
had many chances to add our fears about sterilization to my case.... They did
not give us a chance to tell them that if my wife got pregnant again we could be
fined or, because we already have a son, my wife could be forced to have an
abortion if she got pregnant or that she and I would be sterilized if we were sent
back.... [H]e did not tell us that we could raise the family planning conditions in
China in our petition. He did not explain that after 1997 we could argue that the
family planning conditions in China were a reason for asylum here. He did not
ask us what family conditions were like in China or about our fears about what
we would face if we were sent back with regard to our dream of having a larger
family. If he did ask I would have told him that my sister was forced to undergo
an abortion when she was almost nine months pregnant with her second child.
The BIA determined that the affidavit submitted by Wang failed to satisfy the
screening test prescribed in Lozada.
10
11
The Azanor court affirmed the BIA decision, on the ground that Azanor failed
to comply with the Lozada affidavit requirement: "[Azanor's sworn declaration]
does not describe the nature and scope of her agreement with [her former
attorney] facts essential to a full and complete evaluation of her ineffective
assistance claim." Id. Like the Azanor declaration, the affidavit submitted by
Wang focuses almost exclusively upon what his counsel did not say, without
ever indicating the scope of the legal representation agreed upon. For all we
can discern from the Wang affidavit, Wang may have retained these attorneys
for the sole purpose of submitting an asylum application predicated upon his
alleged fear of persecution due to his opposition to the Communist Party. The
Wang affidavit includes no mention nor suggestion that Wang retained
his counsel to pursue any of the other potential grounds for asylum.
12
13
Additionally, Wang contends that his former attorneys, after having been
informed that Wang was a married man with children, should have anticipated
that he would want to have more children, and therefore that he might harbor a
fear of forced sterilization. Short of assuming either omniscience on the part of
counsel, or presupposing that Wang retained counsel on the understanding that
they would ferret out every conceivably applicable ground for asylum for
which Wang might qualify, see supra, the objective circumstances in the instant
case certainly did not compel a reasonable inference that Wang could prevail
upon an asylum application predicated upon a fear of coerced sterilization.4 In
order to present a viable asylum claim, the applicant must demonstrate both an
objectively reasonable and a subjective fear of persecution. See 8 C.F.R.
208.13(b)(2); Guzman v. INS, 327 F.3d 11, 16 (1st Cir.2003). Thus, any
15
Affirmed.
Notes:
1
The Immigration and Naturalization Act was amended in 1996 to provide that a
well-founded fear of forced sterilization could serve as a legitimate ground for
granting asylumSee 8 U.S.C. 1101(a)(42)(B); Qin v. Ashcroft, 360 F.3d 302,
306-07 (1st Cir.2004).
Nor did Wang ever testify before the IJ to any subjective fear of forced
sterilization
Moreover, we note that the record evidence does not compel an inference that
Wang's subjective fear of sterilization would be considered objectively
reasonable, as the record contains evidence that the compelled sterilization
policy is not enforced systematically in the rural areas of China where Wang
residedCf. Qin, 360 F.3d at 307.
Before this court, Wang now contends, by way of analogy, that a client charged
with homicide who consults a criminal attorney, and merely tells him that he
has an alibi defense, would expect the attorney to pursue other potentially
available defenses as well, such as a statute-of-limitations bar. The analogy is
seriously flawed. A criminal attorney in such a circumstance might verify the
viability of a limitations defense once apprised of one objective fact (viz., the
date of the alleged homicide), a fact which may or may not have been learned
from the client. In contrast, the viability of the Wang sterilization claim would
only become apparent to an attorney if and when the client expressed a
subjective fear, information which obviously can only be derived from the
asylum applicant.