Al Roumy v. Mukasey , 290 F. App'x 856 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0525n.06
Filed: August 27, 2008
No. 07-3328
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAID AL ROUMY,
Petitioner-Appellant,
v. ON PETITION FOR REVIEW FROM AN
O RD ER O F T HE B O AR D O F
MICHAEL B. MUKASEY, Attorney General of IMMIGRATION APPEALS
the United States,
Respondent-Appellee.
/
BEFORE: COLE and CLAY, Circuit Judges; and RUSSELL, District Judge.*
CLAY, Circuit Judge. Petitioner Said Al Roumy seeks review of the Board of Immigration
Appeals’ (“BIA”) February 20, 2007 decision denying Al Roumy’s motion to reopen immigration
proceedings regarding Al Roumy’s application for withholding of removal pursuant to 8 U.S.C. §
1231(b)(3) and relief under the Convention Against Torture. Al Roumy claims that the BIA erred
in denying his motion to reopen because changed country conditions justified his untimely filing and
that the ineffective assistance of counsel prevented Al Roumy from presenting his case to the
immigration judge. For the reasons that follow, we DENY Al Roumy’s petition for review.
*
The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
No. 07-3328
BACKGROUND
Petitioner Said Al Roumy is a native and citizen of Lebanon. In his application for
withholding of removal and his testimony before the immigration judge, Al Roumy explained his
background and entry into the United States as follows: Al Roumy was born in a village in the south
of Lebanon but lived in Beirut until he came to the United States. In Lebanon, both Al Roumy and
his family faced persecution from Hezbollah. Al Roumy’s brother worked for a foreign car company
until he was killed in 1983 by a car bomb. Al Roumy believes that the bomb was planted by
Hezbollah to retaliate against his brother for his brother’s links with foreigners. In 1989 or 1990,
Al Roumy was detained by Hezbollah for three days because the group wanted Al Roumy to work
with them and to stop associating with members of the South Lebanon Army (“SLA”), a rival to
Hezbollah. Al Roumy was only released after he promised to help Hezbollah.
After Al Roumy’s release, Hezbollah continued to harass and threaten Al Roumy whenever
he visited his village in the south of Lebanon. In 1995 or 1999, Hezbollah burned his house in the
village, and Al Roumy stopped traveling to southern Lebanon. Hezbollah consolidated its power
in the south in 2000 when Israeli military forces pulled out of southern Lebanon and the SLA
disbanded. As a result, Al Roumy feared for his life and decided to leave Lebanon for the United
States. Because there were no American embassies in Lebanon, Al Roumy traveled to Cyprus to
apply for a visa. After securing the visa, Al Roumy returned to Beirut, and in October 2000 he left
for the United States where he remained even after his visa expired in October 2001. Al Roumy’s
case came to the attention of immigration authorities after he registered in compliance with post-
September 11th special registration requirements.
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No. 07-3328
Removal proceedings were initiated against Al Roumy on December 19, 2002 with the
issuance of a notice to appear alleging that Al Roumy had overstayed his visa. On February 4, 2005,
Al Roumy submitted an application for relief under the Convention Against Torture and withholding
of removal pursuant to 8 U.S.C. § 1231(b)(3). A hearing was held before an immigration judge on
September 23, 2005 at which Al Roumy testified regarding his fear of persecution and torture in
Lebanon based upon his political opinion. At the hearing, Al Roumy was represented by a non-
lawyer who was accredited by the BIA to practice before the immigration court.
In addition to his testimony, Al Roumy supported his claims with the death certificate of his
brother and an unsworn letter from his sister claiming that Al Roumy’s brother had been killed by
Hezbollah and that Hezbollah was pursuing Al Roumy. The immigration judge questioned the
authenticity of the death certificate because no original had been produced and because the blanks
for the cause of death and name of spouse were not filled out. Without explaining the basis for his
knowledge, Al Roumy claimed that the failure to list this information on death certificates is
common in Lebanon. The immigration judge also challenged the absence of additional corroboration
of Al Roumy’s claims. He asked why Al Roumy’s sister, who was a long-time resident of the United
States, did not testify at the hearing. The immigration judge also noted that there were no statements
from Al Roumy’s wife or his mother who supposedly had heard Hezbollah members asking about
Al Roumy’s whereabouts. In response, Al Roumy claimed that he did not realize that such
corroboration was needed despite the fact that his representative had sent him a letter suggesting that
he obtain corroborating evidence.
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No. 07-3328
The immigration judge denied Al Roumy’s application for withholding of removal in an oral
decision announced on the day of the hearing. Citing inconsistencies between Al Roumy’s testimony
and his application for withholding of removal, the immigration judge found Al Roumy incredible.
The immigration judge specifically noted Al Roumy’s failure to mention in his application or during
direct examination the fact that Hezbollah members burnt his house down. The negative credibility
finding was also based on Al Roumy’s inability to recollect the year of his detention by Hezbollah,
Hezbollah’s failure to force Al Roumy to work with them for the ten years following Al Roumy’s
alleged detention, Al Roumy’s inconsistent and vague testimony regarding his residence and work
history in Lebanon, and Al Roumy’s inconsistent testimony regarding the adoption of his deceased
brother’s daughter.
In addition to inconsistencies in Al Roumy’s testimony, the immigration judge found that Al
Roumy had failed to present corroborating evidence for vital aspects of his claim and that the scant
corroboration provided was unhelpful. Discounting Al Roumy’s testimony, the immigration judge
found that Al Roumy had not proven that he had any problems with Hezbollah. The immigration
judge also noted that country reports indicated that Hezbollah had not retaliated against former SLA
members or individuals who collaborated with Israel. The immigration judge came to the ultimate
conclusion that due to the incredibility of Al Roumy’s testimony and corroborating documents, Al
Roumy had failed to prove that it was more likely than not that he would be subject to persecution
or torture if removed to Lebanon. As a result, the immigration judge ordered Al Roumy removed
to Lebanon.
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No. 07-3328
Al Roumy appealed the immigration judge’s order to the BIA at which time attorney George
P. Mann began representing Al Roumy. Initially, the BIA dismissed his appeal as untimely because
Al Roumy’s notice of appeal was received on October 31, 2005, after the thirty-day appeals period
had expired. Al Roumy filed a motion to reconsider in which he explained that the delay in the
delivery of his notice of appeal was caused by a mistake on the part of UPS. On August 28, 2006,
the BIA granted Al Roumy’s motion to reconsider but denied his appeal on the merits, rejecting Al
Roumy’s claims that the immigration judge erred by failing to grant him a continuance and by
finding him incredible. The BIA found that Al Roumy had not requested a continuance to procure
additional corroborating evidence and that the immigration judge did not clearly err in concluding
that Al Roumy was incredible. The BIA concluded that the immigration judge’s credibility finding
was supported by Al Roumy’s “failure to provide consistent and detailed testimony regarding his fear
of return to Lebanon.” (J.A. 238.)
On December 14, 2006, Al Roumy filed a motion to reopen the BIA’s August 28, 2006
decision. The BIA denied this motion because it was filed more than 90 days after the previous
decision and was thus untimely. Despite Al Roumy’s evidence of the growing power of Hezbollah
in Lebanon, the BIA determined that the evidence submitted did not prove the existence of materially
changed circumstances such that the 90-day filing deadline was inapplicable. The BIA also found
unpersuasive Al Roumy’s claim that he was prejudiced by ineffective assistance of counsel.
Following the denial of his motion to reopen, Al Roumy filed a timely petition for review.
DISCUSSION
I.
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No. 07-3328
This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. Denko
v. INS, 351 F.3d 717, 723 (6th Cir. 2003). Because the BIA has broad discretion in deciding whether
to reopen proceedings, the party seeking reopening “bears a heavy burden.” Barry v. Mukasey, 524
F.3d 721, 724 (6th Cir. 2008) (quoting Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007)). The
BIA abuses its discretion when it “offers no ‘rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis such as invidious discrimination against a
particular race or group.’” Id. (alterations in original) (quoting Balani v. INS, 669 F.2d 1157, 1161
(6th Cir. 1982)). Despite this deferential standard of review, we may not affirm the BIA on a basis
it has not articulated in its decision. Mirza v. Gonzales, 148 F. App’x. 467, 469 (6th Cir. 2005).
Al Roumy claims that in his motion to reopen he demonstrated that country conditions in
Lebanon had changed materially and that as a result the BIA abused its discretion by denying his
motion to reopen as untimely. Generally, a motion to reopen must be filed “no later than 90 days
after the date on which the final administrative decision was rendered in the proceeding sought to
be reopened.” 8 C.F.R. § 1003.2(c)(2). An exception to this time limit is made if the motion to
reopen is “based on changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered, if such evidence is material and was not available and could not
have been discovered or presented at the previous hearing.” 8.C.F.R. § 1003.2(c)(3)(ii). In order
to justify the reopening of proceedings based on changed country conditions, the movant “cannot rely
on speculative conclusions or mere assertions of fear of possible persecution, but instead must offer
reasonably specific information showing a real threat of individual persecution.” Harchenko v.
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No. 07-3328
I.N.S., 379 F.3d 405, 410 (6th Cir. 2004) (quoting Dokic v. INS, No. 92-3592, 1993 WL 265166, at
*5 (6th Cir. July 15, 1993)).
The BIA found that Al Roumy’s motion to reopen was filed more than 90 days after the
BIA’s decision affirming the immigration judge’s denial of withholding of removal. In support of
his motion, Al Roumy presented additional evidence in an attempt to demonstrate materially changed
circumstances in Lebanon. Al Roumy included an affidavit from himself reiterating his claim of
persecution and a letter from his mother stating that in October 2006 Hezbollah members asked
when Al Roumy would be returning to Lebanon. Al Roumy also included voluminous amounts of
news reports and commentary regarding Israel’s invasion of Lebanon and the resulting rise in
Hezbollah’s power in southern Lebanon. The BIA found the evidence lacking because “[t]he
respondent has not contended that the nature of any persecution he reportedly fears has changed in
character, but only that it has varied in scope and degree.” (J.A. 2.) As a result, the BIA found that
the changed country conditions exception to the 90-day filing requirement did not apply to Al
Roumy’s motion to reopen. Al Roumy challenges this conclusion on numerous grounds, claiming
that the BIA failed to follow its own procedures in evaluating his claim and that the reasoning of the
BIA’s opinion is faulty.
Al Roumy claims that the BIA abused its discretion because the BIA failed to follow its own
rules in determining whether changed country conditions excuse Al Roumy’s untimely filing. To
support this argument, Al Roumy makes the allegation that “[t]here is no indication that the BIA
engaged in any meaningful reviewable analysis of the documentary evidence provided by petitioner.”
(Pet’r Br. 16.) Although the BIA must provide a rational basis for its denial of a motion to reopen,
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No. 07-3328
this Court does not require that the BIA “list every possible positive and negative factor in its
decision.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003) (quoting Rodriguez-Rivera v. INS,
993 F.2d 169, 170-71 (8th Cir.1993)). The BIA must simply “announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Id. (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984)).
In the instant case, the BIA analyzed Al Roumy’s changed country conditions argument as
follows:
The evidence submitted in support of reopening includes articles concerning country
conditions in Lebanon and evidence from the respondent and his family. The
respondent has not contended that the nature of any persecution he reportedly fears
has changed in character, but only that it has varied in scope and degree. The
evidence submitted does not establish that the respondent is entitled to an exception
to the filing requirements for reopening based on an asylum claim arising from
materially changed circumstances in Lebanon.
(J.A. 2.) The BIA’s decision, though brief, explains the evidence presented by Al Roumy, explains
why the evidence is unpersuasive, and concludes that Al Roumy has not shown changed country
conditions that would excuse his untimely filing. Thus, the decision demonstrates that the BIA “has
heard and thought and not merely reacted.” Scorteanu, 339 F.3d at 412.
In his challenge to the reasoning of the BIA’s decision, Al Roumy focuses on the BIA’s
statement that additional evidence was unhelpful because Al Roumy claimed no change in the
“character” of persecution but only in the “scope and degree” of persecution. (J.A. 2.) Al Roumy
argues that this language demonstrates that the BIA made a false and unwarranted distinction in
determining what type of change in country conditions would warrant an untimely motion to reopen.
Viewed in isolation this language could be troubling; however, viewed in light of the entirety of Al
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No. 07-3328
Roumy’s case, the BIA has provided a rational explanation for its decision. Certainly, as Al Roumy
argues, there is no general requirement that a claim of changed country conditions must establish a
change in the “character” of persecution as opposed to its “scope and degree.” See Harchenko, 379
F.3d at 410 (requiring a showing of materially changed conditions demonstrating an individualized
fear of persecution). However, in the instant case, the BIA found that Al Roumy’s claim of
persecution by Hezbollah was not credible. Therefore, additional evidence that Hezbollah had
gained power in Lebanon, even though it expanded the “scope and degree” of Al Roumy’s
allegations of persecution, was merely cumulative of the evidence presented at Al Roumy’s hearing
and insufficient to require the reopening of proceedings before the BIA. See Zhao v. Gonzales, 440
F.3d 405, 407 (7th Cir. 2005) (“[C]umulative evidence that conditions asserted in the original
application ‘persisted’ is not evidence of changed circumstances.” (citing Betouche v. Ashcroft, 357
F.3d 147, 152 (1st Cir. 2004)).
The addition of Al Roumy’s mother’s letter claiming that Hezbollah members were asking
about Al Roumy does not change the cumulative nature of the evidence presented. At his hearing
before the immigration judge, Al Roumy had already testified that his mother was aware of such
inquiries. Although the letter could be seen as making Al Roumy’s claim regarding these inquiries
more believable, the BIA acted within its discretion in determining that this additional evidence does
not demonstrate “a real threat of individual persecution.”1 Harchenko, 379 F.3d at 410. Because
1
Al Roumy also relies upon dicta in Abdallah v. Gonzales, 193 F. App’x 408 (6th Cir. 2006),
to argue that changed country conditions excuse his untimely motion to reopen. In Abdallah this
Court denied a Lebanese citizen’s petition for review of the BIA’s denial of asylum, and this Court
noted that Abdallah could file a motion to reopen based on changed country conditions due to
dramatic changes in Lebanon. Abdallah, 193 F. App’x at 412. Although this Court suggested that
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No. 07-3328
the BIA did not abuse its discretion by denying Al Roumy’s motion to reopen, this Court may not
overturn the BIA’s determination that Al Roumy’s allegations of changed country conditions were
insufficient to excuse his untimely filing.
II.
Al Roumy further challenges the BIA’s decision on due process grounds, claiming that he
was entitled to an individualized hearing on changed country conditions in Lebanon. Pursuant to
the Fifth Amendment of the United States Constitution, aliens are entitled due process of the law in
immigration proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). Even a discretionary decision
is constrained to some extent by the requirements of due process such that “some level of
individualized determination” is required. Vata v. Gonzales, 243 F. App’x 930, 949 (6th Cir. 2007)
(quoting Flores, 507 U.S. at 313). But see Ramirez v. Gonzales, 247 F. App’x 782, 786 (6th Cir.
2007) (holding that due process was not implicated in the denial of motion to reopen because an
immigrant has no due process right in a discretionary decision). Claims of a violation of due process
in immigration proceedings are reviewed de novo. Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir.
2006).
For this proposition, Al Roumy cites cases that hold that immigrants are entitled to full and
fair deportation hearings. See, e.g., Amadou v. INS, 226 F.3d 724, 727 (6th Cir. 2000) (holding that
an asylum applicant was deprived of the due process guarantee of a full and fair hearing due to an
changed country conditions in Lebanon could excuse an untimely filing of a motion to reopen, the
BIA is not bound by this dicta. See Haddad v. Gonzales, 437 F.3d 515, 518 (6th Cir. 2006)
(affirming the BIA’s denial of a motion to reopen despite an earlier panel’s recommendation that
Haddad’s changed circumstances would justify a motion to reopen).
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No. 07-3328
incompetent interpreter). Al Roumy mistakes his due process right to a full and fair deportation
hearing with the process to which he is entitled at the motion to reopen stage. The BIA’s
consideration of the evidence presented in light of the movant’s claim is sufficient to provide “some
level of individualized determination” and satisfy due process at the motion to reopen stage. Vata,
243 F. App’x at 949. Therefore, Al Roumy’s claim that his due process rights were violated by the
BIA’s failure to conduct a hearing is meritless.
III.
The BIA refused to grant relief on Al Roumy’s claim that his accredited representative2
rendered ineffective assistance at Al Roumy’s hearing before the immigration judge. Because Al
Roumy only claimed that ineffective assistance of counsel prejudiced him at his initial withholding
of removal hearing and not at the motion to reopen stage, the BIA held that the representative’s
performance could not explain Al Roumy’s late filing and could not be used as a basis for equitable
tolling of the filing date for Al Roumy’s motion to reopen. In addition, the BIA held that Al
Roumy’s ineffective assistance argument did not warrant relief because Al Roumy had failed to
comply with the requirements of In re Lozada, 19 I&N Dec. 637 (BIA 1988) aff'd, 857 F.2d 10 (1st
Cir. 1988), for giving notice to his appointed representative.
Al Roumy makes no arguments regarding the BIA’s finding that Al Roumy’s ineffective
assistance claim does not excuse the untimeliness of his motion because the alleged ineffective
2
An accredited representative authorized to represent persons in immigration proceedings is
a representative of a non-profit organization that has proven to the BIA that it “makes only nominal
charges and assesses no excessive membership dues for persons given assistance; and . . . has at its
disposal adequate knowledge, information and experience.” 8 C.F.R. § 292.2.
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No. 07-3328
assistance occurred during the immigration hearing and not during the filing of the motion to reopen.
Instead, Al Roumy argues that the Lozada requirements do not apply to his case because he was
represented by a non-attorney representative. In response, the government asserts that the application
of the Lozada factors is not limited to claims of ineffective assistance of licensed attorneys.3
Although this Court may simply affirm this aspect of the BIA’s decision based on the BIA’s
uncontested holding that Al Roumy’s ineffective assistance claim, even if properly substantiated,
does not excuse his untimely filing of a motion to reopen, we address Al Roumy’s argument
regarding Lozada below.
As noted above, the Fifth Amendment entitles non-citizens a due process right to a full and
fair hearing in deportation proceedings. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). This
Court has held that “[i]neffective assistance of counsel in a deportation proceeding will rise to the
level of a due-process violation under the Fifth Amendment ‘only if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his case.’” Id. (quoting
3
The government also claims that there is no constitutional right to effective assistance of
counsel in immigration proceedings since such proceedings are civil matters for which there is no
right to appointed counsel. Although some courts have agreed with this argument, controlling
precedent in this Circuit has recognized such a right. Compare Kalaj v. Gonzales, 137 F. App’x 851,
855-56 (6th Cir. 2005) (holding that although there is no Sixth Amendment right to effective
assistance of counsel, ineffective assistance of counsel can violate a non-citizen’s due process
rights), Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (finding that ineffective assistance of
counsel can violate a non-citizen’s due process rights during immigration proceedings) and
Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001) (same) with Mai v. Gonzales, 473 F.3d
162, 165 (5th Cir. 2006) (questioning the constitutional basis for an ineffective assistance of counsel
claim in immigration proceedings) and Stroe v. INS, 256 F.3d 498, 503-04 (7th Cir. 2001) (holding
that there is no due process right to effective assistance of counsel in immigration proceedings).
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No. 07-3328
Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986)). In order for a movant for reopening
to prevail on a claim of ineffective assistance of counsel, he
is required (1) to file an affidavit stating his agreement with former counsel with
respect to the actions to be taken on appeal and what counsel did nor did not
represent to the alien in this regard; (2) to show that former counsel was informed of
the allegations and was given an opportunity to respond; and (3) to state whether a
complaint has been filed with appropriate disciplinary authorities regarding the
allegedly ineffective representation.
Sswajje v. Ashcroft, 350 F.3d 528, 533 (6th Cir. 2003) (citing Lozada, 19 I. & N. Dec. at 639).
Al Roumy claims that it is impossible for him to comply with Lozada because he was not
represented by an attorney who would be “under the jurisdiction of the local state Bar Association
for disciplinary actions.” (Pet’r Br. 21.) Al Roumy’s claim lacks merit for multiple reasons. First,
Al Roumy has not shown that he has complied with the first two Lozada factors, which do not
depend on the identity of his representative. Second, Lozada does not require that a complaint be
filed against the representative; instead, “the motion should reflect whether a complaint has been
filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”
Lozada, 19 I. & N. Dec. at 639. Al Roumy could have explained in his motion that a complaint was
not filed because his representative was not a lawyer. Third, the BIA has explicitly required
compliance with at least the first two Lozada factors when ineffective assistance by an accredited
representative has been alleged. In re Zmijewska, 24 I. & N. Dec. 87, 93 (BIA 2007). As a result,
Al Roumy’s challenge to the BIA’s decision regarding his ineffective assistance of counsel claim
fails.
CONCLUSION
For the reasons stated above, we DENY Al Roumy’s petition for review.
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