MD Razaul Karim v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4237
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MD RAZAUL KARIM,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-120-170 )
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2012
Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 06, 2012)
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OPINION
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PER CURIAM
MD Razaul Karim, a citizen of Bangladesh, entered the United States in May 1999
as a visitor. In October 2009, he was charged as removable for being in the United States
in violation of the law. On February 18, 2011, an IJ ordered Karim removed in absentia
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after he and his attorney missed a hearing. He filed a motion to reopen and rescind the
order which the government opposed. The IJ denied the motion. On appeal, the BIA
agreed that Karim had not shown exceptional circumstances and dismissed the appeal.
Karim, now proceeding pro se, filed a petition for review.
We have jurisdiction under 8 U.S.C. § 1252. Our review of the in absentia
removal order is limited to the validity of the notice, the reasons Karim did not attend the
hearing, and whether he is removable. 8 U.S.C. § 1229a(b)(5)(D). Before the BIA,
Karim did not challenge the validity of the notice to appear or his removability. Thus, the
only issue before us is why Karim did not attend the hearing.
A removal order entered in absentia may be rescinded by filing a motion to reopen
within 180 days if the alien demonstrates that he failed to appear because of exceptional
circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i). The term “exceptional circumstances”
refers to “exceptional circumstances (such as battery or extreme cruelty to the alien or
any child or parent of the alien, serious illness of the alien, or serious illness or death of
the spouse, child, or parent of the alien, but not including less compelling circumstances)
beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). We review the denial of a
motion to reopen a removal order entered in absentia for an abuse of discretion. Cabrera-
Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006).
Karim states that he was at the courthouse on the morning of his hearing but did
not attend because his counsel did not show up due to illness. He explains that he was
paralyzed with fear and did not know whether he could attend his hearing without his
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attorney. He asserts that he has limited English language skills and believed that aliens
who appear without counsel lose their cases.
The IJ noted that Karim could have come to the courtroom on his own and the
hearing could have been adjourned. The BIA agreed that he had not shown exceptional
circumstances. This was not an abuse of discretion. There were no exceptional
circumstances beyond Karim’s control that kept him from attending his hearing. While
Karim claims that there was no Bengali interpreter in the court, it is not clear how he
would know that if he did not go to the courtroom. While we do not conclude that the
denial of the motion to reopen was an abuse of discretion, we are disturbed by the
conduct of Karim’s former attorney.1
Given counsel’s unacceptable conduct, Karim may wish to consider filing a
motion to reopen based on ineffective assistance of counsel, complying with the
requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).2 We note that
1
The motion to reopen was filed on Karim’s behalf by the same attorney who had missed
the hearing. Counsel submitted an unsworn letter from his doctor stating that counsel had
called him on the morning of February 18, 2011, complaining of slight dizziness. The
doctor advised him to take water pills and rest. It was unacceptable for counsel to fail to
notify the Immigration Court or his client that he would be unable to make it to the
hearing. His condition of “slight dizziness” did not require any medical treatment beyond
water pills and rest. Counsel was physically able to call his doctor’s office. Thus, he
should have been able to call the Immigration Court and his client. Moreover, it is not
clear why counsel waited a month before filing the motion to reopen. Counsel did not
admit to any ineffectiveness in the motion to reopen. This attorney also represented
Karim before the BIA.
2
The BIA noted that Karim had not raised a claim of ineffective assistance of counsel as
a basis for exceptional circumstances. It is not clear whether the BIA realized that Karim
was still represented by the same counsel who had missed the hearing.
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the BIA recently clarified that it does not consider an alien’s leaving the country under a
grant of advance parole as a “departure” triggering inadmissibility under 8 U.S.C.
§ 1182(a)(9)(B)(i)(II). See Matter of Arrabally and Yerrabelly, 25 I. & N. Dec. 771 (BIA
2012). Karim’s travels under a grant of advanced parole were the basis for the denial of
his application to adjust his status. The denial of his application led to his being placed in
removal proceedings. Given that this change in law appears favorable to Karim and may
affect his removability, we strongly encourage the Government to join in any motion to
reopen.
For the reasons above, we will deny the petition for review.
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