Haq v. Mukasey , 270 F. App'x 326 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2008
No. 07-60093 Charles R. Fulbruge III
Clerk
NAWAB MUNIR-UL HAQ
Petitioner
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A73-419-249
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nawab Munir-Ul Haq (Haq) petitions for review of the denial by the Board
of Immigration Appeals (BIA) of his 8 November 2006 motion to reopen a
February 1997 removal order (second motion to reopen). DENIED.
I.
A citizen and native of Pakistan, Haq entered the United States on a non-
immigrant business visa on 22 November 1994, with authorization to remain
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60093
only one month. On 13 March 1996, Haq was charged with being removable for
being in the United States beyond the authorized period.
Before an Immigration Judge (IJ), Haq conceded he was removable and
applied for asylum, withholding of removal, and voluntary departure. On 18
February 1997, the IJ denied Haq’s asylum and withholding-of-removal
requests, finding Haq’s claims of persecution were not credible. In addition, the
IJ ruled Haq was statutorily ineligible for relief, pursuant to INA §
208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i), based on finding Haq assisted, or
otherwise participated in, the persecution of others (a persecutor) through his
membership and mid-level management position in a faction of the Mohajir
Qaumi Movement (MQM-A), a group the IJ found responsible for acts of violence
and persecution. The IJ also denied Haq’s request for voluntary departure and
ordered him removed to Pakistan.
Haq appealed to the BIA. During the pendency of the appeal, however, he
married a United States citizen, who filed an I-130 relative visa petition on his
behalf; it was approved in April 2000. On 5 February 2002, based upon the
approved visa petition, Haq’s counsel moved, at Haq’s request, to withdraw his
appeal from the denial of his asylum and withholding-of-removal applications.
As a result, on 25 February 2002, the BIA dismissed Haq’s appeal.
Counsel, realizing she should not have withdrawn the appeal, by letter to
the district counsel requested his consent to reopen Haq’s case. Shortly
thereafter, Haq filed an unopposed motion with the BIA to reopen the
proceedings and remand the case to an IJ for a hearing on his adjustment-of-
status application. The BIA granted the motion on 10 July 2002.
Following a venue change, a different IJ held a hearing on Haq’s
adjustment-of-status application. On 19 November 2004, however, the IJ ruled
the BIA’s remand did not authorize him to reconsider Haq’s entire case, but
2
No. 07-60093
instead it was limited to “developments . . . that arose subsequent to the
previous [IJ’s] rulings”.
The IJ found Haq was statutorily eligible for adjustment of status, but
denied the application as a matter of discretion, based upon the initial IJ’s
finding Haq was a persecutor. The IJ further found Haq could not challenge
that finding because he had withdrawn his appeal from that ruling. The IJ
noted: Haq’s persecutor status was the only reason for denying his adjustment-
of-status application; and, if that ruling were overturned, Haq would be eligible
for adjustment, both statutorily and as a matter of discretion.
The IJ ordered Haq removed to Pakistan, and the BIA affirmed on 10
August 2006. Haq did not petition this court for review of that decision.
Instead, on 8 November 2006, Haq filed his second motion to reopen his
removal proceedings with the BIA, maintaining counsel had been ineffective for
withdrawing his appeal from the initial IJ’s ruling. The BIA denied the motion,
ruling: Haq should have raised the issue earlier in the proceedings; and the
counsel’s decision to withdraw the appeal was a tactical decision, not ineffective
assistance.
II.
The BIA’s denial of Haq’s second motion to reopen is the only issue.
Maintaining the BIA abused its discretion by doing so, Haq asserts he showed
counsel provided ineffective assistance by withdrawing his initial appeal, instead
of seeking a remand for consideration of his adjustment-of-status application.
Further, he contends counsel’s deficient performance prejudiced him because the
initial IJ’s persecutor-finding was erroneous.
Our jurisdiction is governed by 8 U.S.C. § 1252, which was amended by the
REAL ID Act to allow judicial review of “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
accordance with this section”. 8 U.S.C. § 1252(a)(2)(D); see Mai v. Gonzales, 473
3
No. 07-60093
F.3d 162, 164 (5th Cir. 2006). “This amendment applies retroactively to cases
pending at the time of its enactment.” Mai, 473 F.3d at 164 (citation omitted).
Accordingly, we have jurisdiction to review Haq's petition. See id.
Motions to reopen deportation proceedings are not favored. INS v.
Doherty, 502 U.S. 314, 323 (1992). Broad discretion exists to grant or deny them,
and there is no general statutory authority for reopening deportation
proceedings. Id. at 323-24. As reflected above, the BIA’s denial of a motion to
reopen is reviewed for abuse of discretion. Ogbemudia v. INS, 988 F.2d 595, 600
(5th Cir. 1993). That discretion will not be disturbed unless it is arbitrary,
capricious, racially invidious, or utterly without evidentiary foundation.
Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993). Rulings of law are reviewed de
novo, with deference to reasonable interpretations of immigration regulations.
Mai, 473 F.3d at 164.
“Although an alien has no Sixth Amendment right to effective counsel
during removal proceedings, this court has repeatedly assumed without deciding
that an alien’s claim of ineffective assistance may implicate due process concerns
under the Fifth Amendment.” Id. at 165 (emphasis added) (internal citation
omitted). Our court has stated several times, albeit in dicta, that an alien’s
“right to due process is violated when the representation afforded [him] was so
deficient as to impinge upon the fundamental fairness of the hearing, and, as a
result, the alien suffered substantial prejudice”. Gutierrez-Morales v. Homan,
461 F.3d 605, 609 (5th Cir. 2006) (citation and internal quotation marks
omitted); see also Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001).
In ruling on ineffective-assistance-of-counsel claims, the BIA’s decision must be
“reasoned” and not “without rational explanation” or an inexplicable departure
from established policies. Mai, 473 F.3d at 165
The BIA denied Haq’s motion to reopen on two independent bases. For
one, the BIA rejected Haq’s ineffective-assistance-of-counsel claim because he
4
No. 07-60093
was not diligent in raising it. It noted: Haq did not raise this claim until more
than four years after the ineffective assistance allegedly occurred, almost three
years after retaining his present counsel, and almost ten years after the initial
IJ’s ruling he sought to challenge. The BIA further ruled Haq should have
known of counsel’s error after the second IJ refused to entertain his challenge
to the initial IJ’s persecutor-finding, but he did not raise the ineffective-
assistance-of-counsel claim until after the BIA affirmed the second IJ’s ruling.
Accordingly, the BIA’s denial of the second motion to reopen may be construed
as being on the ground that Haq did not then present previously unavailable
material evidence. See INS v. Abudu, 485 U.S. 94, 107 (1988); Manzano-Garcia
v. Gonzales, 413 F.3d 462, 468-69 (5th Cir. 2005).
As the BIA found, Haq did not explain in his second motion to reopen why
he waited years to raise his ineffective-assistance challenge. Furthermore, he
offers no explanation to our court, asserting only that he has been represented
continuously by counsel and has continuously sought relief. While Haq’s counsel
may have continuously sought relief on his behalf, the BIA’s conclusion that Haq
has been dilatory in pursuing an ineffective-assistance claim is supported by the
record.
Furthermore, the BIA’s decision serves the “strong public interest in
bringing litigation to a close as promptly as is consistent with the interest in
giving the adversaries a fair opportunity to develop and present their respective
cases”. Abudu, 485 U.S. at 107. Haq had ample opportunity to present his
ineffective-assistance claim at an earlier time and chose (albeit through counsel)
not to do so. Therefore, under our highly deferential standard of review, we
must uphold the BIA’s discretionary decision because it is not “capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible rational
5
No. 07-60093
approach”. Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002) (citation and
internal quotation marks omitted).
III.
For the foregoing reasons, the petition is DENIED.
6