Yeghiazaryan v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEY YEGHIAZARYAN,  No. 03-72159
Petitioner, Agency No.
v. A74-423-765
ALBERTO R. GONZALES, Attorney ORDER
General, AMENDING
Respondent.  OPINION AND
DENYING
PETITION FOR
PANEL
REHEARING AND
AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 20, 2005—Pasadena, California
Filed December 14, 2005
Amended March 10, 2006
Before: Andrew J. Kleinfeld and Raymond C. Fisher,
Circuit Judges, and Milton I. Shadur, Senior District Judge.*
Opinion by Judge Shadur
*The Honorable Milton I. Shadur, Senior Judge for the United States
District Court for the Northern District of Illinois, sitting by designation.
2423
2426 YEGHIAZARYAN v. GONZALES
COUNSEL
Aggie R. Hoffman, Shivani T. Mehta, Law Offices of Aggie
R. Hoffman, Los Angeles, California, for the petitioner-
appellant.
Peter D. Keisler, Assistant Attorney General; Terri J. Scadron,
Assistant Director; Jennifer A. Parker, Attorney; Jennifer
Levings, Attorney; Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington D.C., for
the respondent-appellee.
ORDER
The opinion filed December 14, 2005, is amended in its
entirety as follows:
OPINION
Sergey Yeghiazaryan (“Yeghiazaryan”) challenges the
decision of the Board of Immigration Appeals (“BIA”) deny-
ing his motion for reconsideration of the BIA’s earlier denial
of his motion to reopen. Yeghiazaryan had sought reopening
of the BIA’s decision dismissing his appeal from the denial by
an Immigration Judge (“IJ”) of his asylum application and of
the withholding of removal. Because the BIA’s denial of
Yeghiazaryan’s motion to reconsider was an abuse of discre-
tion and a violation of due process, we grant Yeghiazaryan’s
YEGHIAZARYAN v. GONZALES 2427
petition for review and remand for the substantive consider-
ation of his motion to reopen.
Background1
Yeghiazaryan, a citizen of Armenia, was born in Siberia to
parents exiled by the government of the former Soviet Union.
On November 11, 1995 Yeghiazaryan entered the United
States with a Soviet passport and a B-2 visa. One and one-half
months later, on December 29, 1995, Yeghiazaryan filed an
application for asylum (I-589) with the Immigration and Nat-
uralization Service (“INS”). Yeghiazaryan could not speak or
understand English, so he enlisted the help of a lay person to
complete his I-589 application. Because that nonlawyer never
translated the I-589 application for him, Yeghiazaryan was
unaware of the facts that he needed to include in the I-589 and
hence failed to communicate those facts to the nonlawyer for
inclusion.
At Yeghiazaryan’s asylum interview, the asylum officer
found his testimony to be “consistent, detailed, and plausible
in light of country conditions . . . [and] therefore . . . credi-
ble.” According to the officer, although Yeghiazaryan pre-
sented evidence indicating that his “fundamental human rights
to security of person, liberty, and freedom from arbitrary
arrest were violated,” the evidence did not show that these
abuses were perpetrated “on account of any statutory
grounds.” On May 20, 1996 the matter was referred to the IJ
and a Notice To Appear for Hearing was issued.
Yeghiazaryan retained an attorney to represent him at the
1
What is reflected in this Background section is the state of the record
as presented to the immigration authorities and on our appeal—a record
that, because it forms the basis for our review, we must assume to be true.
We have not of course made any factual findings regarding such matters
as the nature of the conduct, or the adequacy of representation, on the part
of Yeghiazaryan’s earlier counsel as hereafter recited in the text.
2428 YEGHIAZARYAN v. GONZALES
IJ hearing. That lawyer not only failed to prepare Yeghia-
zaryan for the hearing but was also unprepared herself on
multiple occasions before the IJ. In one instance she
instructed Yeghiazaryan to lie and tell the IJ that he was sick
so that she could secure a continuance on Yeghiazaryan’s
case, and Yeghiazaryan followed his lawyer’s advice—he
lied. Despite numerous continuances, the lawyer was still
unprepared once the hearing took place—thus she neglected
to translate into English critical documents proving imputed
political opinion. Instead Yeghiazaryan had to try to introduce
those documents himself as best he could.
At the hearing the IJ found that Yeghiazaryan was not enti-
tled to asylum, basing the denial largely on what the IJ
believed to be the “most significant testimony”: Yeghiazary-
an’s statement, as translated, that if he returned to Armenia he
would “not [be] in danger, but my family would be humiliat-
ed.” As the IJ explained, prospective humiliation is not suffi-
cient to meet the statutory criteria for asylum: “a well-
founded fear of persecution or a clear probability of persecu-
tion.” Unfortunately that analysis was based on what has now
been labeled as a serious mistranslation by the interpreter of
Yeghiazaryan’s actual statement. Noune Oganessian
(“Oganessian”), an official court interpreter later hired by
Yeghiazaryan’s third lawyer to help in preparation of his
motion to reopen, has explained that Yeghiazaryan really said
that he would “[n]ot only [be] in danger, but my family
would be humiliated” (emphasis added).
After the hearing the original counsel notified Yeghia-
zaryan that she would not represent him on appeal. Yeghia-
zaryan then sought to retain another lawyer. Although
Yeghiazaryan believed that he was signing a contract to enlist
that lawyer’s services, the contract (which was never trans-
lated into Armenian or Russian) in fact provided for the ser-
vices of the lawyer’s wife. Yeghiazaryan was also unaware
that the wife, despite her retainer as his attorney, filed a pur-
ported pro se brief in Yeghiazaryan’s name. That eight-page
YEGHIAZARYAN v. GONZALES 2429
brief included only boilerplate recitations of the law and con-
tained just two paragraphs that referred to the particular facts
and merits of Yeghiazaryan’s case.
On November 27, 2002 the BIA affirmed without opinion
the IJ’s denial of asylum, a ruling that could be the subject of
a motion to reopen filed within 90 days. Confronted by
another loss due to ineffective assistance by counsel, Yeghia-
zaryan then hired a third lawyer, Aggie Hoffman
(“Hoffman”). On December 23, 2002 Hoffman filed a skeletal
motion to reopen on Yeghiazaryan’s behalf.2 That motion
identified four grounds for reopening: (1) ineffective assis-
tance of counsel, (2) an ineffective interpreter, (3) new and
material evidence that had previously been unavailable and
(4) other evidence not brought to the attention of the IJ
because of the ineffective assistance of counsel. And having
done so, the motion notified the BIA that Yeghiazaryan would
“submit a brief, declarations, and fully documented basis of
the grounds of this [motion to reopen], within the 90 day time
period.”
In addition to handling the motion to reopen, Hoffman con-
currently prepared an application for stay of removal (Form
I-246).3 Yeghiazaryan was scheduled to be deported on
December 27, 2002, when the BIA’s dismissal of his appeal
became final, and the December 23 filing of the skeletal
motion to reopen was an important adjunct of the application
for a stay of deportation. In support of the application for stay
of removal, Hoffman provided the INS with a copy of com-
plaints that had been filed with the California State Bar
2
On January 8, 2003 the BIA acknowledged receipt of Yeghiazaryan’s
motion to reopen.
3
Yeghiazaryan requested that this Court grant him permission to supple-
ment the record with a copy of the I-246 he submitted in December 2002
and a copy of a second I-246 he submitted in May 2003. As those docu-
ments were not presented to the BIA, we will not review them on appeal
(see 8 U.S.C. § 1252(b)(4)(A)).
2430 YEGHIAZARYAN v. GONZALES
against all of the other lawyers and a receipt of the filing fee
paid for the motion to reopen. According to Yeghiazaryan, in
considering an I-246 application agents from Immigration and
Customs Enforcement typically “only look for a filing fee
from the BIA as evidence that further review is pending,” so
that a stay is warranted. On February 5, 2003 Yeghiazaryan’s
application for stay of removal was granted.
Just one week later, on February 12, 2003, the BIA summa-
rily dismissed Yeghiazaryan’s motion to reopen for its failure
to provide supporting evidence. At the time of that dismissal
there were still 14 days left in the 90-day window for Yeghia-
zaryan to file such evidence.
On March 14, 2003 attorney Hoffman filed a motion on
Yeghiazaryan’s behalf for reconsideration of the BIA’s denial
of the motion to reopen. Because the BIA had denied the
motion to reopen before Hoffman could provide the brief and
evidence to support it, she included those materials in the
motion to reconsider. Similarly, Hoffman, who had intended
to file her own declaration with the evidence in support of the
motion to reopen, included her declaration with the motion to
reconsider. Hoffman’s declaration explained that the original
motion to reopen was skeletal because she had to file some-
thing to stay Yeghiazaryan’s deportation, and the limited
nature of that filing was due to the facts that she had only
recently been retained, that she was unable to obtain Yeghia-
zaryan’s documents from the earlier counsel because of the
holiday season and that she had difficulty finding a qualified
and certified Armenian translator.
On May 23, 2003 the BIA denied Yeghiazaryan’s motion
to reconsider. Explaining the denial, the BIA stated:
At the time the respondent’s motion to reopen was
filed with the Board, it was not supported by evi-
dence that established that reopening was warranted.
The Board was therefore correct to deny it. There is
YEGHIAZARYAN v. GONZALES 2431
no language in the regulation that requires the Board
to hold in abeyance motions to reopen until the expi-
ration of the 90-day period allowed for filing.
Yeghiazaryan (still represented by Hoffman) argues before
us that the denial by the BIA of his motion to reconsider was
an abuse of discretion and violation of due process. Addition-
ally he claims that he was denied due process when his peti-
tions for appeal and for a motion to reopen were reviewed by
a single BIA member. We have jurisdiction pursuant to 8
U.S.C. §1252(a).
Standard of Review
We review the BIA’s denial of a motion to reopen for
abuse of discretion (see Lara-Torres v. Ashcroft, 383 F.3d
968, 972 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir.
2005)). Such an abuse of discretion exists when the BIA acts
“arbitrarily, irrationally or contrary to law” (id., reconfirming
uniform earlier caselaw). Questions of law are reviewed de
novo, with deference generally afforded to the BIA’s interpre-
tation of the immigration laws “unless that interpretation is
contrary to the plain and sensible meaning of the statute”
(Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)).
Claims of due process violations are also reviewed de novo
(id.).
Denial by the BIA of the Motion To Reconsider
In filing a motion to reconsider, the petitioner must “speci-
fy[ ] the errors of fact or law in the prior Board decision . . .”
(8 C.F.R. § 1003.2(b)(1)).4 In this instance Yeghiazaryan con-
tends that the BIA erred in denying his motion to reopen
when it pretermitted the time Yeghiazaryan had available to
file his motion to reopen. We agree.
4
All provisions of 8 C.F.R. will be cited “Reg. §—.”
2432 YEGHIAZARYAN v. GONZALES
[1] Under Reg. §1003.2(c)(2) a petitioner has 90 days
“after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened” to file a
motion to reopen. Reg. §1003.2(c)(1) further explains that
“[a] motion to reopen proceedings . . . must be accompanied
by the appropriate application for relief and all supporting
documentation.” In denying Yeghiazaryan’s motion to
reopen, the BIA took the position—and the government now
argues—that the regulation requires simultaneous submission
of a petitioner’s motion, brief and supporting evidence, even
in instances where the petitioner has filed a protective motion
and has notified the court that he intends to provide the neces-
sary application for relief and supporting documentation at a
later date within the 90-day time period. Nothing in Reg.
§1003.2(c), however, mandates concurrent submission under
such circumstances, nor is there any warning that early filing
somehow closes the otherwise available 90-day window.
[2] Rather, as Garcia-Cortez v. Ashcroft, 366 F.3d 749 (9th
Cir. 2004) instructs, when the legal claims are clearly stated
the BIA violates a petitioner’s due process rights by dismiss-
ing a motion to reopen for failure to file supporting material
within the prescribed time limit. Although Garcia-Cortez con-
cerned a neighboring regulation regarding summary dis-
missal, its reasoning is applicable here. In Garcia-Cortez two
petitioners filed a notice of appeal from the IJ’s decision. In
that notice the petitioners indicated both the bases of their
appeal and that they would separately file a written brief in
support of their appeal at a later date (id. at 751). Although
the promised brief was ultimately filed, that took place after
the time for so doing had elapsed (id.). As a result the BIA
summarily dismissed the petitioners’ appeal. We overturned
the BIA, finding the BIA’s summary dismissal due to the
belatedly filed briefing to be inappropriate where the petition-
ers had provided the BIA with sufficient notice of their claims
in their initial filing.
[3] In this case Yeghiazaryan’s filing likewise provided the
BIA with notice of the specific grounds on which he sought
YEGHIAZARYAN v. GONZALES 2433
to challenge the IJ’s decision: It stated that he was entitled to
reopen his asylum hearing because he was prejudiced by his
ineffective and incompetent counsel and interpreter and
because he had new evidence to support his asylum applica-
tion. Additionally, and perhaps most importantly,
Yeghiazaryan—like the petitioners in Garcia-Cortez—did
then file a brief and documents to support his claim.
Indeed, the only reason that Yeghiazaryan’s brief was
assertedly “untimely” was because the BIA had dismissed his
case summarily before the Regulation’s 90-day period elapsed.5
At no point before so ruling did the BIA indicate to Yeghia-
zaryan that such an early dismissal was possible. Yeghia-
zaryan filed what amounted to a fully briefed and supported
motion to reopen at the next available time—in his motion to
reconsider. That newly-filed motion not only set out support
for Yeghiazaryan’s claims of ineffective assistance of counsel
and ineffective interpreter and provided the BIA with new
evidence to support his asylum application but also, as noted
above, set forth his explanation for why he earlier filed the
skeletal motion to reopen.
To support his claim for ineffective assistance of counsel,
pursuant to Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), Yeghiazaryan included disciplinary complaints he had
filed against the earlier lawyers. Additionally, Yeghiazaryan
included a report by Oganessian demonstrating the incompe-
tency of the interpreter used at Yeghiazaryan’s asylum hear-
ing. While that report documented numerous errors of the
original interpreter, the most crucial error came where the
court interpreter distorted Yeghiazaryan’s answer when the IJ
5
In its brief the government tries to argue that even if the BIA had held
open Yeghiazaryan’s motion to reopen, Yeghiazaryan “failed to file the
supporting evidence within the ninety-day time period allowed by the reg-
ulation.” That argument lacks merit. As we have explained, once the BIA
prematurely dismissed his motion to reopen, the only option for Yeghia-
zaryan was to file, in conjunction with his motion to reconsider, the evi-
dence with which he intended to support his motion to reopen.
2434 YEGHIAZARYAN v. GONZALES
asked him: “Do you believe that upon your return you would
be, ah, pursue or in danger for your past activities?” While the
court interpreter translated Yeghiazaryan’s answer as “[n]ot in
danger, but my family would be humiliated, my entire fami-
ly,” Yeghiazaryan actually responded “[n]ot only in danger,
but my family would be humiliated, my entire family.” That
error was highly prejudicial, for as stated earlier it was based
on that mistakenly altered statement—that Yeghiazaryan
would suffer only humiliation—that his application for asy-
lum was denied.
[4] In denying the motion to reconsider, the BIA neither
took into consideration nor evaluated that new evidence. It
simply reaffirmed its earlier determination that the dismissal
of the motion to reopen was proper on procedural grounds.
Under circumstances such as these—where Yeghiazaryan had
to file his skeletal motion to reopen for collateral purposes,
where counsel filing the motion to reopen entered the case at
a very late stage and during the holiday season, where
Yeghiazaryan’s motion to reopen laid out its bases and noti-
fied the BIA that evidence would be forthcoming within the
prescribed regulatory time for filing, and where the BIA did
not notify Yeghiazaryan that his motion could be denied
before the expiration of that time for filing—the BIA’s denial
was not only “arbitrary” and “irrational” but also “contrary to
law” and a violation of due process. Due process “requires
that aliens who seek to appeal be given a fair opportunity to
present their cases” (a well-established proposition recon-
firmed in Garcia-Cortez, 366 F.3d at 753). In that respect, see
also Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.
2000) (citation omitted), which holds that although there is no
administrative rule requiring the BIA to review all relevant
evidence submitted on appeal, “it is beyond argument . . . that
the Due Process Clause requirement of ‘a full and fair hear-
ing’ mandates that the [BIA] do so in its capacity as a review-
ing tribunal.”
[5] In this instance Yeghiazaryan was denied due process
because the BIA foreclosed his one avenue of relief without
YEGHIAZARYAN v. GONZALES 2435
providing him notice and without a reasoned basis for doing
so. That action was highly prejudicial, because it prevented
Yeghiazaryan from correcting the incompetent translation at
his hearing before the IJ, and because “a competent transla-
tion is fundamental to a full and fair hearing” (Perez-Lastor
v. INS, 208 F.3d 773, 778 (9th Cir. 2000)). Here the distorted
translation resulted in the IJ’s fatal misunderstanding of a dis-
positive moment in Yeghiazaryan’s testimony. When the BIA
then refused to consider the evidence Yeghiazaryan later sub-
mitted with his motion to reconsider, it compounded the
harm. And because Yeghiazaryan was thus denied the oppor-
tunity to have his motion to reopen heard on the merits, we
remand this case to the BIA for substantive consideration of
that motion.
Single BIA Member Review
Yeghiazaryan’s alternative contention that the BIA review
of appeals by single-person panels is a per se violation of due
process lacks merit. On that score Falcon Carriche v. Ash-
croft, 350 F.3d 845, 848 (9th Cir. 2003) has held that stream-
lining is constitutionally permissible. Moreover, we will not
take judicial notice, as requested by Yeghiazaryan, of the
Findings and Recommendations of the ABA Commission on
Immigration Policy, Practice and Pro Bono.
Conclusion
For the reasons stated in this opinion, we GRANT Yeghia-
zaryan’s petition for review and REMAND this case to the
BIA for consideration on the merits of Yeghiazaryan’s motion
to reopen (see INS v. Ventura, 537 U.S. 12 (2002) (per
curiam)).
Respondent’s amended petition for panel rehearing, filed
February 16, 2006, is DENIED and no further petitions for
rehearing will be considered.