Topi, Ermal v. Mukasey, Michael B. , 264 F. App'x 504 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 10, 2008*
Decided February 11, 2008
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 07-1187
ERMAL TOPI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A98-544-632
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
ORDER
Ermal Topi, a native and citizen of Albania, applied for asylum in September 2004,
*
Although this case originally was scheduled for oral argument on January 10, 2008,
after receiving the petitioner’s January 8, 2008 motion to remand, the court, on its own
motion, ordered that oral argument would be vacated and the case was submitted for
decision without oral argument to the panel sitting on January 10, 2008. See Fed. R. App. P.
34(a)(2).
No. 07-1187 Page 2
but failed to appear at his scheduled May 9, 2006 hearing and was removed in absentia. He
appeals the Board of Immigration Appeals’ (BIA’s) denial of his motion to reopen.
The basic facts are simple on their face, but became more complicated as the case
progressed. After one change of venue from Michigan to Florida, the Chicago Immigration
Court scheduled Topi’s hearing for May 9, 2006. Sometime around April 21, Topi moved to
change venue again, this time to Detroit, Michigan, but the immigration judge did not rule
on that motion prior to the hearing. Topi did not appear at the scheduled May 9 hearing
and as a consequence, the immigration judge deemed Topi’s application for relief
withdrawn and ordered him removed in absentia. Two weeks later, on May 23, 2006, Topi’s
counsel filed a motion to reopen the proceedings. The motion consisted solely of the
attorney’s unverified factual assertions that Topi was living in the Detroit area and had
asked a relative to drive him to the hearing and that, although they had left with sufficient
time to arrive at the hearing by nine o’clock in the morning, the massive reconstruction
project on I-94 in and around Chicago resulted in a complete standstill that prevented him
from getting to the courthouse in time. (R. at 45-46). The motion did not contain an
affidavit from Topi. As the government pointed out in its brief to this court, the motion
contained no evidence at all, as statements in a motion are not evidence and are not entitled
to any evidentiary weight. Respondents Brief at 10 (citing 8 U.S.C. § 1229a(c)(7)(B); In re S-
M, 22 I.&N. Dec. 50, 51 (1998) (en banc); INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984)
superseded on other grounds by statute, Pub.L. No. 99-603, 100 Stat. 3359 (1986); In re
Ramirez-Sanchez, 17 I.&N. Dec. 503, 505-06 (1980)).
The immigration judge denied the motion to reopen both because the petitioner
failed to present evidence to support the motion and because the facts alleged failed to show
the “exceptional circumstances” required to reopen a case before the immigration court. (R.
at 41). In his brief to the BIA on appeal, Topi’s counsel repeated his earlier factual account
and for the first time asserted that Topi did eventually arrive at the immigration court, but
had already been ordered removed. Again, counsel offered no evidence for his assertions.
The BIA agreed with the immigration judge that Topi had failed to provide evidence in
support of his motion to reopen and failed to demonstrate that there were any exceptional
circumstances that would allow the immigration court to reopen his removal proceedings.
(R. at 2).
Topi appealed to this court which scheduled oral argument for January 10, 2008. In
his brief, Topi’s new appellate counsel presented an abbreviated version of the same facts –
that Topi had “failed to appear in a timely fashion due to unanticipated and extremely
adverse traffic conditions.” Two days prior to argument however, on January 8, 2008, Topi’s
counsel filed an astonishing motion to remand, notifying the court that the factual assertions
No. 07-1187 Page 3
forming the basis for Topi’s argument on appeal “were not accurate.” Petitioner’s Motion to
Remand at p. 1. To say that the assertions were “inaccurate” is an understatement indeed.
In an attached affidavit, Topi’s new counsel explained that, in preparing for oral argument
he “spoke with Mr. Topi regarding additional information that might be raised at oral
argument . . . . During that conversation, Mr. Topi indicated to me that the facts in the
motion to reopen and the appeal to the Board of [I]mmigration Appeals were not correct
and that, in fact, Mr. Topi did not miss the hearing because he was stuck in traffic.” Id. at
affidavit, p.1. According to the affidavit, Mr. Topi explained “that he was in Chicago in time
to attend the hearing but that, because his former counsel had not adequately prepared him
for the hearing, his former counsel told Mr. Topi that he would go the U.S. Immigration
Court and request a continuance.” Id. at pp. 1-2. Topi’s former counsel, however, did not
request a continuance. Instead, he allowed Mr. Topi to be removed in absentia, and then
waited two weeks to file a motion to re-open.
Topi’s counsel asked us to remand the case to allow Topi to introduce additional
evidence regarding the actual reasons why he failed to appear at the immigration court
hearing, and, if necessary, for Topi to pursue appropriate disciplinary action concerning the
conduct of his former counsel, Isuf Kola. If Topi’s assertions are correct, his former counsel
committed a serious ethical breach by filing a motion to reopen with the immigration court
and an appeal to the BIA based on facts which he knew were not true. What is less clear is
the extent to which Topi is complicit in the alleged falsehoods.
According to Topi, his lawyer had failed to prepare adequately for the hearing and
promised to seek a continuance – a promise he promptly broke. Instead, he allowed his
client to be removed from this country in absentia, and then two full weeks later, filed a
motion to reopen based on allegedly false facts. Unlike a continuance which is routinely
granted by immigration courts for good cause, see 8 C.F.R. § 1003.29 (“The Immigration
Judge may grant a motion for continuance for good cause shown.”); see also, e.g., Gjeci v.
Gonzales, 451 F.3d 416, 417 (7th Cir. 2006) (immigration court continued alien’s asylum
proceedings thirteen times), an order of removal entered in absentia can be rescinded only in
the narrowest of cases – if the alien did not receive the requisite notice to appear before the
immigration judge, or if the failure to appear was due to “exceptional circumstances.” 8
U.S.C. § 1229a(b)(5)(c). If the facts pan out as described, the extent of Kola’s dishonesty and
failings as both an advocate for Topi and an officer of the court were so extreme that it
would be surprising indeed if he did not attempt to keep the nature of his actions hidden
from his client. Recall that in the motion to reopen, Kola never submitted an affidavit from
Topi – a suspicious act from the start. Topi does not get a free pass for the failings or
misdeeds of his lawyer, if any; but he may have other remedies. See Tango Music, L.L.C. v.
DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir. 2003) (“[i]f a party’s lawyer is guilty of
No. 07-1187 Page 4
professional malpractice . . . , the party has a remedy against him, but it should not be
permitted to shift the burden of its agent’s neglect to the district court and the defendants”).
Under some egregious circumstances, the BIA may allow a petitioner who carefully follows
its required procedures to reopen proceedings in order to remedy a lack of effective
assistance of counsel. See In re Lozada, 19 I.&N. Dec. 637, 638-39 (1988), aff'd, 857 F.2d 10(1st Cir. 1988); Stroe v. I.N.S., 256 F.3d 498, 501 (7th Cir. 2001). Consequently, we issue the
following order:
1. The Petition for Review of the Final Order of Removal of the Board of
Immigration Appeals is denied because its factual predicate has been
abandoned.
2. This denial is without prejudice to any other remedy, such as a motion to
reopen based on ineffective assistance of counsel, that may be available under
applicable law.
3. A copy of this order will be forwarded to the Illinois Attorney Registration and
Disciplinary Committee for such action as it deems appropriate with respect
to Topi’s counsel before the immigration court and Board of Immigration
Appeals, Isuf Kola, of the Law Offices of Isuf Kola Ltd, 800 Roosevelt Rd.,
Building B Suite 110, Glen Ellyn, IL 60137.
DENIED