Khemlall v. Sessions, 697 F. App'x 739

Background

Petitioner Harischandra Khemlall, a Guyanese national, sought withholding of removal and CAT relief and later moved to reopen based on ineffective assistance of counsel.
IJ denied withholding and CAT relief (May 17, 2013); IJ denied the motion to reopen (May 12, 2015); BIA affirmed (Feb. 1, 2016); petitioner appealed to the Second Circuit.
Key factual disputes: inconsistent testimony about prior deportation destination (Guyana vs. Trinidad and Tobago), whether Khemlall’s counsel possessed identity documents, and whether counsel failed to pursue a domestic‑violence–based claim.
The agency made adverse credibility findings against Khemlall and his mother; the Second Circuit reviewed the IJ’s decision as modified by the BIA (excluding an adverse credibility ruling the BIA declined to reach).
The IJ/BIA found counsel’s performance not deficient and that any omitted domestic‑violence claim was available at the merits hearing (so reopening standard not met).
The agency found past harm did not rise to persecution and Khemlall failed to show a well‑founded fear of future persecution or likelihood of torture on return to Guyana.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s performance was ineffective such that reopening was warranted	Counsel failed to prepare, produce identity documents, and omitted a domestic‑violence claim; thus reopening for ineffective assistance is required	Counsel’s work was reasonable and strategic choices (omitting weak claims) do not constitute ineffective assistance; factual disputes support counsel’s testimony	Denied—agency reasonably found no deficient performance and no prejudice from counsel’s actions
Whether the adverse credibility findings stemmed from counsel’s lack of preparation	Khemlall says inconsistencies (e.g., deportation destination) resulted from counsel’s failure to prepare	Government points to record contradictions and attorney testimony showing inconsistencies are petitioner’s own and not counsel’s fault	Denied—agency permissibly credited counsel and relied on record inconsistencies unrelated to preparation
Whether reopening should be granted to consider a domestic‑violence claim on the merits	Khemlall sought reopening to present a domestic‑violence–based fear claim	Government: claim was available at the original hearing; reopening requires previously unavailable, material evidence that would likely change the result	Denied—claim was available earlier; petitioner did not meet the heavy burden for reopening absent ineffective assistance
Whether withholding of removal/CAT relief should have been granted	Khemlall alleged past harassment and an assault and claimed risk of future harm/torture in Guyana	Government: incidents do not rise to persecution; country conditions do not particularize risk to petitioner	Denied—past harm was not persecution; no particularized, well‑founded fear of future persecution or likelihood of torture

Key Cases Cited

Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.) (standard for reviewing IJ decision as modified by BIA)
Changxu Jiang v. Mukasey, 522 F.3d 266 (2d Cir. 2008) (ineffective assistance requires prejudice and fundamental unfairness)
Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43 (2d Cir. 2005) (ineffective assistance standard)
Debeatham v. Holder, 602 F.3d 481 (2d Cir. 2010) (abuse of discretion review; burden to show prejudice)
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (deference to agency credibility and factual findings)
Romero v. U.S. INS, 399 F.3d 109 (2d Cir. 2005) (strategic omission of damaging credibility issues not ineffective assistance)
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006) (persecution requires more than mere harassment)
Jian Xing Huang v. U.S. INS, 421 F.3d 125 (2d Cir. 2005) (future persecution claim requires solid support in the record)
Vanegas‑Ramirez v. Holder, 768 F.3d 226 (2d Cir. 2014) (testimony must be factually specific for fear of future persecution)
Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156 (2d Cir. 2005) (particularized evidence required to show likelihood of torture)
Jones v. Barnes, 463 U.S. 745 (U.S. 1983) (counsel not required to press every colorable claim)