YUN ZHU LIN, Heng You Ruan, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 474 F. App'x 841

SUMMARY ORDER Petitioners Yun Zhu Lin and Heng You Ruan, natives and citizens of the People’s Republic of China, seek review of an April 6, 2011 order of the BIA denying their motion to reopen. In re Yun Zhu Lin & Heng You Ruan, Nos. [ AXXX XXX XXX ]/423 (B.I.A. Apr. 6, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case. “We review the BIA’s denial of a motion to reopen for abuse of discretion.” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (citation omitted).

Lin and Ruan moved to reopen their removal proceedings, asserting that their former counsel had been ineffective for failing to file a brief on appeal to the BIA. The BIA denied reopening, finding that Lin and Ruan failed to establish that they suffered actual prejudice due to their counsel’s actions and thus did not demonstrate ineffective assistance. We find no abuse of discretion.

To prevail on a claim of ineffective assistance, a movant “must show that his counsel’s performance was so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause.” Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir.1992). To show a deprivation of fundamental fairness, a movant must allege facts that establish that “competent counsel would have acted otherwise,” and that “he was prejudiced by his counsel’s performance.” Id. (citing Esposito v. INS, 987 F.2d 108, 111 (2d Cir.1993)) (internal quotation marks omitted).

To show actual prejudice, movants must establish prima facie eligibility for the relief sought and demonstrate “that [they] could have made a strong showing in support of [their] application” but for their counsel’s ineffective assistance. Id. at 882-83. Thus, to prevail on them ineffective assistance claim, the petitioners were required to demonstrate that the BIA would have reached a different result in adjudicating their appeal had their prior counsel filed an appellate brief. See Esposito, 987 F.2d at 111. Lin and Ruan argue that their appeal would have been granted had counsel filed a brief.

They claim that they demonstrated prima facie eligibility for asylum because they had a second child in the United States. Under China’s family planning policy, sterilization is mandatory after the birth of a second child, and sterilization is a form of persecution. The petitioners failed to articulate what arguments their former attorney could have raised that would have changed the result of their case. See Esposito, 987 F.2d at 111.

Specifically, in their motion to reopen, the petitioners offered only con-clusory assertions that they were eligible for asylum based on the birth of their second child in the United States. Standing alone, these assertions are inadequate to demonstrate eligibility for asylum, withholding of removal or CAT relief. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 164-66 (2d Cir.2008) (finding no error in the BIA’s conclusion that evidence similar to that submitted by the petitioners was insufficient to establish prima facie eligibility for relief). For the foregoing reasons, the petition for review is DENIED.

As we have completed our review, any stay of removal that the Court previously granted is VACATED, and the pending motion for a stay of removal is DENIED as moot.