Petitioner Chen applied for asylum on the basis of the harm he had suffered for violating China's One Child Policy. At issue (among other things) was whether Chen, in fact, had two children. At the request of his first attorney, Ming, he requested birth certificates from china for both children. A forensic document analysis determined that his son's birth certificate was fraudulent. According to Chen, Ming did not inform him of his, but instead told him that certificate was useless and he needed another one. Though he knew that a genuine certificate was not available in China for his son because his illegal birth was never registered, Chen asked his father in China to send another birth certificate for his son. A forensic analysis determined that this certificate, too, was fraudulent. At that point, Chen hired a new attorney (Zhang). The Immigration Judge denied Chen's application. The Board of Immigration Appeals (Board) affirmed that decision.
Chen then retained new counsel and moved the Board to reopen based on Ming and Zhang’s ineffective assistance. In a detailed brief, Chen methodically argued that each inconsistency or deficiency identified by the IJ could be attributed to his counsel’s incompetence, including a translation error in his application that Ming acknowledged making. Chen also argued that Ming’s negligence misled him into submitting the fraudulent birth certificates because she never explained to him that the government was questioning the authenticity of his son’s birth certificate. The Board denied the motion. Although it agreed that the attorneys had behaved in a substandard manner and that Chen had complied with all of the procedural requirements to support a motion to reopen based on ineffective assistance of counsel, it determined that he could not establish the requisite prejudice. It focused exclusively on the submission of the two fraudulent birth certificates, essentially concluding that Chen had doomed himself by submitting them.
On appeal to the Seventh Circuit, Chen prevailed. The court recognized that the Board's decision could be interpreted in two ways, both of which required remand.
One possibility was that the Board "ruled that because [Chen] knew that his son’s birth certificates were fraudulent, his claim necessarily fails regardless of his attorneys’ representation. If that is the correct reading of the Board’s decision, then its reasoning is erroneous. A finding that an applicant knowingly offered fraudulent evidence allows an IJ to find an applicant not credible, but it does not require an adverse credibility ruling or compel the IJ to deny the claim solely based on the fraudulent submission." Notably, the IJ had not actually rendered an adverse credibility determination in Chen's case!
The second possibility is that the "Board ruled that because Chen knowingly submitted false birth certificates, he did not corroborate the heart of his claim, and therefore, lacking this essential corroboration, Chen would have lost even with competent counsel. But if the Board ruled that Chen must lose because he lacks corroboration, its ruling is procedurally flawed because it ignores Chen’s main argument in his motion to reopen: the IJ required corroboration only because his attorneys ineptly caused the IJ to find Chen’s testimony inconsistent. If his attorneys had properly presented his testimony, Chen explains, any inconsistencies might have vanished, and the IJ might have found his testimony, standing alone, sufficient to carry his burden without the need for corroboration." The Seventh Circuit deemed this a potentially meritorious argument, and found that the Board failed to adequately consider it.
The full text of Chen v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-01/C:14-2411:J:PerCuriam:aut:T:fnOp:N:1527153:S:0
