Varpetyan v. Holder , 406 F. App'x 236 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARAPET VARPETYAN, No. 06-73241
Petitioner, Agency No. A075-756-624
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2010**
Pasadena, California
Before: PREGERSON and M. SMITH, Circuit Judges, and HOLLAND, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
Karapet Varpetyan (“Varpetyan”), a native and citizen of Armenia, petitions
for review of a decision by the Board of Immigration Appeals (“BIA”) denying his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
Varpetyan timely submitted an application for asylum claiming that he
feared persecution by the Armenian government on account of his political
activities with the Armenian National Movement (“ANM”). Varpetyan stated that
he had been arrested and badly beaten by officials from the Ministry of Internal
Affairs because he refused to provide false testimony about other ANM members.
An asylum officer referred Varpetyan’s case to the Immigration Court. While
Varpetyan’s case was still pending in the Immigration Court, Varpetyan’s wife sent
him a letter that had been delivered to their house in Armenia from the Office of
the Public Prosecutor of Armenia (“Prosecutor’s Notice”) informing Varpetyan
that he was required to appear before a government investigator. Varpetyan
submitted the Prosecutor’s Notice to the Immigration Court in support of his
asylum claim, and the government requested that Varpetyan authenticate the
document. Varpetyan’s counsel submitted the document to a “service” in Los
2
Angeles, which affixed an apostille1 certifying the document’s authenticity. A
report from the Department of Homeland Security (“DHS”) concluded that the
Prosecutor’s Notice and its apostille were fraudulent.
The IJ denied Varpetyan relief solely because Varpetyan had submitted an
allegedly fraudulent apostille. The BIA adopted and affirmed the IJ’s decision,
citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).
We have jurisdiction under 8 U.S.C. § 1252, and we conclude that the IJ
abused his discretion in denying Varpetyan’s attorney’s motion for a continuance.
Prior to Varpetyan’s merits hearing, his attorney, Alan Harris,2 was in a car
accident. Harris asked Attorney James L. Rosenberg3 to take over Varpetyan’s
case. Varpetyan attempted to contact Attorney Rosenberg about a month before
1
An apostille is an international certification that authenticates the origins of
a public document. See The Hague Convention Abolishing the Requirement for
Legalisation for Foreign Public Documents, Oct. 5, 1961, 33 U.S.T. 883, 527
U.N.T.S. 189.
2
Varpetyan was represented in five of his first six hearings by Alan Harris,
who has since resigned from the New York Bar after admitting to engaging in the
unauthorized practice of law during the time period he represented Varpetyan
before the Immigration Court. See In re Harris, 804 N.Y.S.2d 309 (App. Div.
2005).
3
We note that the Ninth Circuit suspended Attorney Rosenberg in September
2008 from the practice of law in the Ninth Circuit for conduct unbecoming a
member of the Ninth Circuit’s Bar. See Matter of Rosenberg, 24 I. & N. Dec. 744(BIA 2009); see also In re Rosenberg, No. 08-J-13482 (Cal. St. Bar Ct. Sept. 30,
2010), available at http://members.calbar.ca.gov/courtDocs/08--J-13482.pdf.
3
Varpetyan’s merits hearing, but Attorney Rosenberg did not meet with Varpetyan
until the day before his hearing. On the day of Varpetyan’s merits hearing,
Attorney Rosenberg requested “a very brief continuance” because he was not
prepared to provide effective assistance of counsel. The IJ denied Attorney
Rosenberg’s motion for a continuance.
We consider the following factors in determining whether a continuance
should have been granted: “(1) the importance of the evidence” that would have
been submitted, “(2) the unreasonableness of the immigrant’s conduct, (3) the
inconvenience to the court, and (4) the number of continuances previously
granted.” Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008). An IJ may grant a
petitioner’s request for a continuance for good cause after making a meaningful
inquiry based on the above-mentioned factors. 8 C.F.R. § 1003.29. See Ahmed v.
Holder, 569 F.3d 1009, 1014 (9th Cir. 2009).
First, it was critical to Varpetyan’s case that his new attorney, Rosenberg, be
prepared to address the IJ’s concerns about Varpetyan’s submission of an allegedly
fraudulent document, particularly because his previous counsel’s submission of
that document was the sole basis of the IJ’s adverse credibility finding. In fact, the
IJ emphasized how critically important it was for Varpetyan’s attorney – who met
with his client for the first time the day before the hearing – to prepare Varpetyan’s
4
case properly. The IJ acknowledged (1) that the case would have been different had
the document in question never been submitted, and (2) that Attorney Rosenberg
could have addressed the IJ’s concerns if Rosenberg had taken the document to the
Armenian Consulate for authentication. By denying the continuance, the IJ
impaired Varpetyan’s ability to obtain effective assistance of counsel, see, e.g.,
Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988), and to avoid the adverse credibility
finding that was of “vital importance” to the IJ’s decision, see, e.g., Cui, 538 F.3d
at 1293.
Second, Varpetyan’s actions were reasonable under the circumstances.
Varpetyan trusted that his previous attorney, Alan Harris, would have taken some
action to address the DHS report that concluded that the Prosecutor’s Notice and
its apostille were fraudulent. See Mohammed v. Gonzales, 400 F.3d 785, 792 n.7
(9th Cir. 2005) (“For the alien unfamiliar with the laws of our country, an attorney
serves a special role in helping the alien through a complex and completely foreign
process.”) (internal quotation marks and citation omitted). Moreover, Varpetyan
did not even have the original document to authenticate on his own because the
Prosecutor’s Notice was never returned to him after the government conducted its
investigation. Finally, the BIA’s conclusion that Varpetyan “had over six months
to find a new attorney” does not accurately reflect the circumstances of
5
Varpetyan’s situation. Varpetyan acted reasonably considering: (1) Varpetyan
reasonably relied on his previous attorney, Alan Harris, to properly transfer
Varpetyan’s case to another attorney after Alan Harris’s car accident; (2)
Varpetyan attempted to contact his new attorney, Rosenberg, in advance of
Varpetyan’s merits hearing, and (3) Varpetyan did not have an opportunity to meet
with Attorney Rosenberg until the day before Varpetyan’s merits hearing because
Rosenberg had been on vacation and busy with other matters. In other words,
Varpetyan himself was not responsible for the unreasonable delay in requesting a
continuance; his attorneys were. “If an alien exercises his or her statutory right to
retain counsel in a deportation proceeding, it is reasonable that an alien would give
effective control of his or her case to retained counsel.” Monjaraz-Munoz v. INS,
327 F.3d 892, 896 (9th Cir. 2003). Thus, we conclude that Varpetyan acted
reasonably under the circumstances.
Third, granting a short continuance for Varpetyan’s counsel to familiarize
himself with the case would not have resulted in any inconvenience to the IJ or to
the government. While the IJ stated that Washington mandated that “these types of
cases” be completed by June 30, we have no information about this supposed
mandate. Additionally, because Varpetyan’s merits hearing was on March 8, there
is no evident reason why the IJ could not grant Attorney Rosenberg’s request for a
6
“very brief continuance” and still be able to meet the June 30 deadline. To the
extent that the IJ’s caseload prevented such a brief continuance, not only is this
explanation not reflected in the record, but we have stated that “an immigrant’s
right to have [his or] her case heard should not be sacrificed because of the IJ’s
heavy caseload.” Cui, 538 F.3d at 1295. We conclude that any potential
inconvenience to the court in Varpetyan’s case is not outweighed by the result of
allowing the proceedings to continue with an attorney who admitted that he was
unprepared and unable to provide effective assistance.
Fourth, even though Varpetyan’s case had been pending for almost four
years, only three of the numerous continuances were directly attributable to
Varpetyan’s attorney’s motions for a continuance. Even when a petitioner has
sought multiple continuances, we have found that “the interest in administrative
efficiency cannot justify the pretermission of [petitioner’s] claims where the other
factors we have addressed . . . all militate strongly in [petitioner’s] favor.”
Karapetyan v. Mukasey, 543 F.3d 1118, 1132 (9th Cir. 2008). This is particularly
true where, as here, the IJ and the government were responsible for a number of
prior continuances. Cui, 538 F.3d at 1295.
In sum, the factors in Varpetyan’s case, particularly the importance of the
apostille in the IJ’s decision denying Varpetyan relief, the need to protect
7
Varpetyan’s right to effective representation, the reasonableness of Varpetyan’s
actions, and the minimal inconvenience to the Immigration Court, weigh in favor
of a finding that the IJ abused his discretion in denying the continuance.
Therefore, we conclude that the IJ abused his discretion in denying Varpetyan’s
motion for a continuance, and remand to the BIA for proceedings consistent with
this conclusion.4
Petition GRANTED; REMANDED for further proceedings.
4
The IJ’s error in denying Varpetyan’s motion for a continuance warrants the
reopening of his case. That being so, there is no need for us to reach the merits of
Varpetyan’s challenge to the IJ’s adverse credibility finding, which we expect will
be addressed at a new hearing.
8