Hamid v. INS

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Hamid v. Ashcroft No. 02-3166
ELECTRONIC CITATION: 2003 FED App. 0232P (6th Cir.)File Name: 03a0232p.06 UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Abraham
Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio,
UNITED STATES COURT OF APPEALS for Petitioner. Susan K. Houser, Jeffrey J. Bernstein,
UNITED STATES DEPARTMENT OF JUSTICE,
FOR THE SIXTH CIRCUIT Washington, D.C., for Respondent.
_________________
_________________
FAISAL AL HAMID , X OPINION
Petitioner-Appellant, - _________________
-
- No. 02-3166 RONALD LEE GILMAN, Circuit Judge. Faisal al Hamid
v. - entered the United States on a six-month visitor’s visa in 1992
> and overstayed his visa. In 1998, the United States
, Immigration and Naturalization Service (INS) served him
JOHN ASHCROFT , -
Respondent-Appellee. - with a Notice to Appear, alleging that he was subject to being
removed on the basis of the overstay.
N
On Appeal from the Board of Immigration Appeals. Hamid was represented by two different attorneys during
No. A70-824-106. the removal proceedings in the immigration court, which
lasted over two years due to numerous continuances that were
Argued: June 18, 2003 granted at his request. In 2001, the immigration court finally
ordered that Hamid be removed from the United States.
Decided and Filed: July 15, 2003 Hamid appealed the order to the Board of Immigration
Appeals (BIA). With new counsel on appeal to the BIA,
Before: BOGGS and GILMAN, Circuit Judges; Hamid argued that his two prior counsel were ineffective,
MARBLEY, District Judge.* depriving him of his due process rights. The BIA affirmed
the immigration court’s order. For the reasons set forth
_________________ below, we AFFIRM the judgment of the BIA.
COUNSEL I. BACKGROUND
ARGUED: Abraham Kay, LAW OFFICE OF ABRAHAM Hamid, a Jordanian citizen, entered the United States on a
KAY, Cleveland, Ohio, for Petitioner. Susan K. Houser, visitor’s visa from Jordan in May of 1992. His visa expired
in November of 1992. In March of 1997, Hamid, who had
not left the United States since entering in 1992, married a
United States citizen. This was Hamid’s second marriage to
*
The Honorable Algenon L. Marbley, United States District Judge for a United States citizen, the first having ended in divorce
the Southern District of Ohio, sitting by designation.
1
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earlier in 1997. In June of 1998, the INS served Hamid with to prepare a petition, if Hamid wished, for a voluntary
a Notice to Appear, alleging that Hamid was subject to being departure.
removed because he had overstayed his visa.
Hamid did not seek a voluntary departure at the August 10,
A removal hearing was held in the immigration court in 2001 hearing, but instead filed a motion with the court to
February of 1999. Hamid was represented at the hearing by reconsider its ruling that the application for withholding of
Elizabeth Ryser, who requested a continuance to allow for the removal had been abandoned. Specifically, Hamid contended
processing of Hamid’s second visa application, which was that he did not timely file an application for withholding
pending with the INS. The court granted a continuance until because he had recently converted from Islam to Christianity
October 15, 1999. and was concerned about suffering reprisals in Jordan based
on the public disclosure of his new faith. The court denied
On October 15, 1999, Ryser again sought a continuance on the motion on the grounds that it was untimely and that the
the ground that the INS had yet to act on Hamid’s visa circumstances did not warrant reversing the initial ruling.
application. The court granted a further continuance until
October 13, 2000. Hamid appeared without counsel at the Hamid argued at the same hearing that he should be granted
October 13, 2000 hearing because Ryser had in the interim yet another continuance because his second wife had recently
withdrawn from the case. At that hearing, counsel for the INS filed what amounted to his fourth visa application, which the
informed the court that Hamid’s second visa application had INS had not yet acted upon. The court denied the motion. It
been denied on May 31, 2000. The court then granted Hamid then issued an oral ruling for Hamid to be removed to Jordan.
a continuance until November 17, 2000 to obtain new counsel
and allow adequate time to prepare for the hearing. With the assistance of a newly retained attorney, Hamid
appealed the removal order to the BIA. He argued that his
On November 17, 2000, Hamid appeared with new counsel, previous two attorneys had made numerous mistakes in their
Patricia Windham. Windham sought still another continuance representation that amounted to the ineffective assistance of
so that Hamid could file a new visa application. The court counsel. The BIA denied Hamid’s appeal. This timely
denied the motion for a continuance on that ground, but it appeal followed.
granted a continuance until July 13, 2001 so that Windham
would have time to prepare an application for withholding of II. ANALYSIS
removal.
Hamid alleges that the ineffectiveness of his two prior
Windham appeared with Hamid on July 13, 2001 and counsel violated his due process rights. “Fifth Amendment
advised the court that Hamid had not filed an application for guarantees of due process extend to aliens in deportation
withholding of removal, but that Hamid’s brother, a United proceedings . . . .” Huicochea-Gomez v. INS, 237 F.3d 696,
States citizen, had filed a third visa application on Hamid’s 699 (6th Cir. 2001). Ineffective assistance of counsel
behalf in April of 2001. The court ruled that the application violates an alien’s due process rights. Id. “The alien carries
for withholding of removal had been abandoned, but that it the burden of establishing that ineffective assistance of
would grant a continuance until August 10, 2001 for counsel prejudiced him or denied him fundamental fairness in
Windham to prepare to discuss the latest visa application and order to prove that he has suffered a denial of due process.”
No. 02-3166 Hamid v. Ashcroft 5 6 Hamid v. Ashcroft No. 02-3166
Id. We review de novo a ruling by the BIA regarding the respect to the actions to be taken . . . and what counsel did or
alleged ineffective assistance of counsel. Id. did not represent . . . in this regard.” Lozada, 19 I. & N. Dec.
at 639. Hamid’s affidavit and the trial transcript do not do so.
In order to prove ineffective assistance of counsel, an alien They recount Hamid’s allegations concerning what his
“must (1) submit an affidavit describing the agreement for counsel failed to do, but do not mention what actions his
representation entered into with former counsel, (2) inform counsel promised to undertake.
former counsel of the charge for the purpose of allowing him
to respond to the complaints being made against him, and Similarly, Hamid’s affidavit states that he “is causing a
(3) report whether a complaint has been filed with the copy of his BIA Appeal Brief, of this Reply Brief, of his
appropriate disciplinary authorities.” Id. (citing Matter of transcript of proceedings before the Immigration Judge, and
Lozada, 19 I & N. Dec. 637 (BIA 1988)) (enumeration of attorney Windham’s August 9, 2001 Motion to Reconsider,
added). to be sent to the Cuyahoga County Bar Association in support
of the grievance being filed . . . against attorneys Ryser and
The government maintains that the BIA was correct in Windham.” But this indicates that no complaint had been
holding that Hamid did not meet the Lozada requirements. filed at the time of the execution of the affidavit. Nor did
Specifically, the government argues that Hamid did not Hamid explain in his affidavit why it had not already been
furnish the BIA with evidence (1) of his agreements with his filed by that time. The fact that a grievance will be filed,
attorneys, (2) of complaints that he filed with the bar without more, does not satisfy Lozada’s requirement that a
association, or (3) that his attorneys had an opportunity to complaint be filed before the affidavit is submitted to the
respond to the charges. Hamid, on the other hand, contends BIA, nor does it furnish an explanation of why it was not so
that paragraph 20 of his affidavit that was submitted to the filed. Lozada, 19 I. & N. Dec. at 639 (stating that the
BIA references complaints that he filed with the Cuyahoga petitioner should indicate whether a complaint “has been
County Bar Association, which in turn gave counsel actual filed” by the time that he submits his affidavit to the BIA); cf.
notice of the charges. He further argues that the agreement Lu v. Ashcroft, 259 F.3d 127, 134 (3d Cir. 2001) (“[T]he
that he had with his attorneys was “set forth on the trial failure to file a complaint is not fatal if a petitioner provides
transcript” and was summarized in his affidavit. Finally, a reasonable explanation for his or her decision.”) (emphasis
Hamid’s new counsel explained at oral argument that the omitted).
previous attorneys had had an opportunity to respond to the
charges filed with the bar association because the bar Hamid’s last argument is that even if he has not technically
association automatically forwards all such complaints to the complied with Lozada, the BIA should have exercised its
counsel referenced in the complaint. discretion to waive such compliance. No error is apparent,
however, where multiple visa applications were filed on
Assuming without deciding that Hamid’s actions satisfied Hamid’s behalf and numerous continuances were granted by
the Lozada requirement that counsel have an opportunity to the immigration court to allow for the proper adjudication of
respond to such complaints, Hamid has still not met the this action. In any event, in the context of removal
remaining Lozada requirements. An affidavit by an alien proceedings, “[t]he failure to be granted discretionary relief
alleging ineffective assistance of counsel, for example, does not amount to a deprivation of a liberty interest.”
“should include a statement that sets forth in detail the Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001).
agreement that was entered into with former counsel with
No. 02-3166 Hamid v. Ashcroft 7
Sound policy reasons support compliance with the Lozada
requirements. The requirements facilitate a more thorough
evaluation by the BIA and “discourag[e] baseless
allegations.” Lozada, 19 I. & N. at 639. Hamid’s failure to
comply results in a forfeiture of his ineffective-assistance-of-
counsel claim. See, e.g., Stroe v. INS, 256 F.3d 498, 503-04
(7th Cir. 2001) (denying an alien’s petition claiming
ineffective assistance of counsel because the petitioner did not
comply with the Lozada requirements).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the BIA.