Al-Ghizi v. Garland

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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ADNAN KHUDAIR SHAREEF AL-
GHIZI,
Petitioner,
v. No. 21-9582
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
The United States admitted Adnan Al-Ghizi as an Iraqi refugee. Following his
conviction for violating a protective order, an immigration judge (IJ) ordered Al-
Ghizi’s removal to Iraq in 2012. Al-Ghizi filed a motion to reopen removal
proceedings based on changed country conditions and ineffective assistance of
counsel. An IJ denied his motion, and the Board of Immigration Appeals dismissed
his appeal. He now seeks review of the Board’s denial. We deny Al-Ghizi’s petition
for review because the Board did not abuse its discretion in concluding that he failed
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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to show a material change in country conditions and that his prior counsel’s
ineffective assistance prejudiced him.
I. Background
The United States admitted Al-Ghizi as a refugee in 1996. Several years later,
a state court convicted him of violating a protective order. The state court
determined he “engaged in conduct that violated a portion of the order that involved
protection against credible reports of violence, repeated harassment, or bodily injury
to the person or persons for whom the protection order was issued.” R., Vol. I at 78.
Because of this conviction, the Department of Homeland Security initiated removal
proceedings against him under 8 U.S.C. § 1227(a)(2)(E)(ii) in 2012. Appearing
before the immigration court pro se, Al-Ghizi admitted the allegations in his Notice
to Appear, and the court sustained the charge of removability.
Al-Ghizi subsequently hired an attorney and submitted an adjustment of status
application and an application for asylum, withholding of removal, and protection
under the Convention Against Torture. At the hearing, the IJ agreed with the
Department that Al-Ghizi was ineligible for asylum and withholding of removal
relief because his participation in a violent uprising against Saddam Hussein’s regime
in 1991 constituted material support of terrorist activity under the terrorism-related
inadmissibility grounds statute. The IJ also concluded Al-Ghizi was not eligible for
protection under the Convention because (1) Al-Ghizi failed to present evidence of
torture, (2) the IJ found Al-Ghizi was not credible, and (3) “as a matter of
discretion.” R., Vol. III at 913. Al-Ghizi, through counsel, waived his right to
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appeal. But the United States did not remove Al-Ghizi because, at that time, Iraq
refused to issue travel documents for repatriations of Iraqi deportees. After several
years, the United States and Iraq reached an agreement regarding the removal of Iraqi
nationals. The agreement prompted Immigration and Customs Enforcement to arrest
Al-Ghizi and prepare him for removal.
The following year, in 2018, Al-Ghizi filed a motion to reopen his removal
proceedings, acknowledging the 90-day deadline to file such a motion had long
passed. Al-Ghizi contended that the time-bar should not apply for two reasons: (1)
there were changed country conditions in Iraq, and (2) his prior counsel provided
ineffective assistance. An IJ denied the motion, explaining that Al-Ghizi failed to
show prejudice resulting from his counsel’s ineffective assistance and that the
country conditions in Iraq had not changed from 2012. On appeal, the Board agreed
with the IJ and dismissed the appeal. Al-Ghizi then filed the present petition for
review.
II. Analysis
We have jurisdiction to review the Board’s denial of a motion to reopen
through a petition for review under 8 U.S.C. § 1252(a)(1). We review its denial for
abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004).
“The BIA abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or contains
only summary or conclusory statements.” Id.3
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Al-Ghizi argues the Board erroneously concluded: (1) conditions in Iraq for
Christian and Iraqi deportees with criminal records had not materially worsened
between 2012 and 2018; (2) the IJ explicitly determined Al-Ghizi was inadmissible
based on terrorism-related inadmissibility grounds; (3) Al-Ghizi’s former counsel’s
ineffective assistance did not prejudice him; and (4) Al-Ghizi could not establish
eligibility for deferral of removal under the Convention Against Torture. Because
the second, third, and fourth alleged errors all relate to Al-Ghizi’s previous counsel
and the 2012 hearing, we address them together.
A. Change in Country Conditions
Al-Ghizi first contends that the conditions in Iraq have changed since his 2012
hearing such that his motion to reopen, which typically must be filed within 90 days
of the final removal order, is timely.
An alien facing removal generally must file a motion to reopen removal
proceedings within 90 days of the date of entry of a final removal order. 8 U.S.C.
§ 1229a(c)(7)(C)(i). There is no time limit, however, if the motion to reopen “is
based on changed country conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding.” Id. § 1229a(c)(7)(C)(ii). In our circuit, “a significant increase in the
level of persecution constitutes a material change in country conditions for purposes
of 8 U.S.C. § 1229a(c)(7)(C)” and “the [Board] abuses its discretion when it fails to
assess and consider a petitioner’s evidence that the persecution of others in his
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protected category has substantially worsened since the initial application. Qiu v.
Sessions, 870 F.3d 1200, 1204–05 (10th Cir. 2017).
Al-Ghizi advances three arguments in support of his contention that the
conditions in Iraq have changed since the 2012 hearing to filing this motion in 2018:
(1) there is heightened suspicion towards Iraqi deportees after then-President
Trump’s travel ban; (2) there are new risks to Iraqi deportees stemming from a
general perception of them as criminals; and (3) there is increased persecution of
Christians from ISIS and sectarian militias. But the Board and IJ carefully reviewed
all the offered evidence in determining that Al-Ghizi did not face a greater risk of
persecution or torture than he did in 2012.
Considering the first two arguments, the Board and the IJ discussed evidence
from the government and Al-Ghizi, including anecdotal evidence and reports offered
by Al-Ghizi and the testimony evidence offered by the government. The Board and
IJ acknowledged Al-Ghizi’s anecdotal evidence and reports that Iraqi government
officials and police occasionally used torture to obtain confessions and during pre-
trial detention. The Board and IJ also noted Al-Ghizi’s evidence that Iraqis and the
Iraqi government opposed their inclusion in then-President Trump’s travel ban.
While Al-Ghizi supplied expert testimony and anecdotal evidence, the Board
and the IJ found the government’s evidence more persuasive. That evidence included
expert witness testimony. As one witness stated, “The government of Iraq is focused
on counter terrorism and post-ISIS stabilization, and I find the suggestion that the
government of Iraq will be interested in detaining returning Iraqis, even those who
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are criminals, for a substantial period of time, much less harming them, to be
farfetched.” R., Vol. II at 583. And another expert witness commented that only
“those suspected of having committed serious criminal offenses inside Iraq, like
murder and rape, would likely be detained.” Id. at 631. The expert continued that
“[d]etention is unlikely should the returnee be able to show family connections.” Id.
at 630. The Board noted Al-Ghizi has family connections in Iraq. Thus, there is
sufficient evidence in the record to support the Board’s conclusion that there was not
material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C).
Al-Ghizi’s third argument regarding his conversion to Christianity fares no
better. As a threshold matter, Al-Ghizi’s conversion is not enough on its own to
support a motion to reopen because “changed personal circumstances cannot support
an untimely motion to reopen after a final order of removal.” Wei v. Mukasey, 545
F.3d 1248, 1249 (10th Cir. 2008). Al-Ghizi instead must show that the Board abused
its discretion in determining that the treatment of Christians in Iraq has not materially
changed since 2012. The Board and IJ commented on Al-Ghizi’s evidence that
Christians in Iraq have suffered threats of violence for many years, particularly with
the rise of ISIS in 2014. But this threat, the Board emphasized, has been effectively
removed by ISIS’s defeat in 2017. According to the Board, the conditions for
Christians in Iraq have significantly improved although they remain far from ideal.
Indeed, the Board observed that “[m]any internally displaced Christians and other
minorities had returned to their homes without issue by September 2017.” R., Vol. I
at 7. Because the Board supported and explained its conclusion consistent with the
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evidence in the record that the conditions in Iraq had not materially worsened from
2012 to 2018, it did not abuse its discretion.
We hold that the Board did not abuse its discretion in concluding that Al-Ghizi
failed to demonstrate changed country conditions. The record shows that the risk of
torture and persecution for Christians and Iraqi deportees had either improved or
remained the same between 2012 and 2018.
B. Ineffective Assistance of Counsel
Al-Ghizi next argues the 90-day deadline for his motion to reopen should be
equitably tolled because his legal representation in 2012 constituted ineffective
assistance of counsel.
“[T]he Fifth Amendment guarantees aliens subject to deportation the right to a
fundamentally fair deportation proceeding.” Osei v. I.N.S., 305 F.3d 1205, 1208
(10th Cir. 2002). And “although there is no right to appointed counsel in deportation
proceedings,” an alien “can state a Fifth Amendment violation if he proves that
retained counsel was ineffective and, as a result, the petitioner was denied a
fundamentally fair proceeding.” Id.The time limitation on motions to reopen may be equitably tolled in
circumstances of ineffective assistance of counsel. Riley v. I.N.S., 310 F.3d 1253,
1258 (10th Cir. 2002). To determine whether a particular case warrants equitable
tolling, the Board must examine the alien’s situation and his “due diligence along
with his attempts to comply with the [Board]’s requirements detailed in Matter of
Lozada, 19 I. & N. 637, 639 (BIA 1988).” Id. “Ineffective assistance of counsel in a
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deportation proceeding is a denial of due process only if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case.” In re Lozada, 19 I. & N. at 638. The alien must also show that “he was
prejudiced by his representative’s performance.” Id. To show prejudice, Al-Ghizi
had to demonstrate a “reasonable likelihood that, but for the errors complained of, he
would not have been deported.” United States v. Aguirre-Tello, 353 F.3d 1199, 1208
(10th Cir. 2004).
The Board assumed without deciding that Al-Ghizi’s 2012 counsel provided
ineffective assistance. But it concluded Al-Ghizi did not show prejudice. It
explained that Al-Ghizi failed to demonstrate he would have been eligible for relief
but for the ineffective assistance.
In arguing that the Board abused its discretion, Al-Ghizi asserts (1) he is not
subject to the terrorism-related inadmissibility grounds, and (2) he is eligible for
relief under the Convention Against Torture. We disagree.
1. Terrorism-Related Inadmissibility Grounds
Al-Ghizi raises two issues: (1) the Board incorrectly assumed that the 2012 IJ
made a clear finding regarding the terrorism-related inadmissibility grounds bar, and
(2) even if the 2012 IJ made an explicit finding, he presented evidence showing the
bar is inapplicable.
Under the terrorism-related inadmissibility grounds, any individual who is a
member of a terrorist organization or who engaged or engages in terrorism-related
activity as defined by the Immigration and Nationality Act is inadmissible to the
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United States and is ineligible for most immigration benefits. 8 U.S.C.
§ 1182(a)(3)(B)(i). The term “engage in terrorist activity” includes providing
material support to a terrorism organization. Id. § 1182(a)(3)(B)(iv)(VI). “Material
support” includes actions such as providing a “safe house, transportation,
communications, funds, transfer of funds or other material financial benefit, false
documentation or identification, weapons (including chemical, biological, or
radiological weapons), explosives, or training” for terroristic activity. Id.
Part of Al-Ghizi’s 2012 hearing involved a dispute as to whether the terrorism-
related inadmissibility grounds barred Al-Ghizi from immigration benefits. The 2012
IJ concluded Al-Ghizi was subject to the terrorism-related inadmissibility grounds
bar because his participation in the 1991 Shia uprising against Saddam Hussein
constituted material support of terrorist activity.
First, Al-Ghizi asserts the 2012 IJ did not provide a conclusion as to whether
he was barred from immigration benefits on terrorism-related inadmissibility
grounds. But the hearing transcript proves otherwise: “I’m going to deny [relief]
because I don’t think the respondent’s [sic] met his burden of proof that he’s entitled
to relief. . . . I don’t think that he’s met his burden of proving to the Court that he
wasn’t part of the uprising in Nasseria.” R., Vol. III at 1032–33. The Board did not
abuse its discretion in finding that the IJ “made a ruling at the respondent’s 2012
hearing that the respondent was subject to the [TRIG-bar].” R., Vol. I at 4.
Second, even if the 2012 IJ did not make this explicit finding, Al-Ghizi has not
produced any evidence demonstrating why he is not subject to the terrorism-related
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inadmissibility bar.1 His motion lacks any allegations regarding his material support
of terrorism during the 1991 Shia uprising. He instead explains that he will provide
additional information about his participation in the uprising at a future merits
hearing. But motions to reopen require an individual to “state the new facts that will
be proven at a hearing to be held if the motion is granted.” 8 U.S.C.
§ 1229a(c)(7)(B). Because Al-Ghizi failed to provide any new evidence showing that
he is not subject to the terrorism-related inadmissibility grounds bar, the Board did
not abuse its discretion in finding no counsel-related prejudice and denying the
motion to reopen.
In addition, Al-Ghizi presents several arguments on appeal that he did not
previously raise. For example, he now argues his attorney should have presented
evidence or asked questions relevant to the Department of Homeland Security
Secretary’s discretionary TRIG exemption under 8 U.S.C. § 1182(d)(3)(B)(i) for
participation in the 1991 Iraqi uprisings. See DHS Secretary Janet Napolitano,
Implementation of New Exemptions Under Immigration and Nationality Act (INA)
Section 212(d)(3)(B)(i) for Participation in Iraqi Uprisings, USCIS (Nov. 12, 2012),
https://www.uscis.gov/sites/default/files/document/legal-docs/Iraqi%20Uprisings%
20Exemption%2011_12.pdf (“On August 17, 2012 . . . the [DHS Secretary] exercised
her discretionary authority not to apply most terrorism-related inadmissibility
grounds to certain aliens for participation in the Iraqi uprisings against the
1
We add that Al-Ghizi admitted on his refugee application to participating in the
uprising.
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government of Saddam Hussein in Iraq from March 1 through April 5, 1991.”). Al-
Ghizi’s failure to exhaust this argument places it beyond the scope of our
consideration. See 8 U.S.C. §1252(d)(1); Garcia-Carbajal v. Holder, 625 F.3d 1233,
1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien must present the same
specific legal theory to the BIA before he or she may advance it in court.”). The
Board could not have abused its discretion by failing to rule in Al-Ghizi’s favor on
arguments the IJ or the Board never had the opportunity to consider.
2. Convention Against Torture
The Board also did not abuse its discretion in deciding that Al-Ghizi failed to
show he was eligible for relief under the Convention Against Torture. Under the
Convention, an applicant must establish that someone in his alleged circumstances
will more likely than not be tortured in the country designated for removal. Cruz-
Funez v. Gonzalez, 406 F.3d 1187, 1192 (10th Cir. 2005). As previously discussed,
Al-Ghizi has not provided evidence establishing that he faces a particularized risk of
torture. And the Board and the IJ emphasized that Al-Ghizi’s remaining family in
Iraq have not suffered any harm in recent years, further supporting the Board’s
conclusion. See Mukhia v. Holder, 507 F. App’x 824, 829 (10th Cir. 2013) (“[T]he
continued presence of an alien’s family members in the country of removal without
further harm undercuts an asserted fear of persecution.”).
In sum, the Board did not abuse its discretion in finding that Al-Ghizi suffered
no prejudice from counsel’s performance in the 2012 proceedings.
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III. Conclusion
The Board did not abuse its discretion in denying Al-Ghizi’s motion to reopen
removal proceedings. We deny Al-Ghizi’s petition for review.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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