Hannoudi v. Gonzales

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0704n.06
Filed: August 15, 2005
No. 03-4148
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NAMIR NOEL HANNOUDI )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
JOHN ASHCROFT, ) BOARD OF IMMIGRATION
United States Attorney General, ) APPEALS
)
Respondent. )
)
)
_______________________________________)
Before: MARTIN and ROGERS, Circuit Judges; and FORESTER,* District Judge.
KARL FORESTER, Senior District Judge. Namir N. Hannoudi petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision denying his request for asylum,
withholding of removal, and protection under the Convention Against Torture. The BIA denied
Hannoudi’s motion finding that the inconsistencies in his testimony supported the Immigration
Judge’s (“IJ”) adverse credibility finding.
*
The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
FACTUAL AND PROCEDURAL BACKGROUND
Namir N. Hannoudi, a native and citizen of Iraq, entered the United States around March
18, 1997 in New York, New York. Subsequently, on January 29, 1998, Hannoudi filed a written
application for asylum with the Immigration and Naturalization Service, in which he claimed
that he was discriminated against and harassed in Iraq because he was a Christian. An asylum
officer declined to grant Hannoudi’s application, and Hannoudi was placed in removal
proceedings on March 9, 1998. Hannoudi has conceded his removability, but requests relief in
the form of asylum, withholding of removal, or protection under the Convention Against
Torture.
While in Iraq, Hannoudi served in the Iraqi military, where he claims he was unfairly
jailed by his military unit, and was transferred to what he calls “hazardous duty” on the Iraqi
border. After completing his military service, Hannoudi started a small business as a car
mechanic in May of 1991. In 1996, a member of the Ba’ath party requested that Hannoudi
perform free service on his car. Hannoudi stated that he originally acquiesced in the Ba’ath
member’s request, but that he subsequently refused when the Ba’ath member requested a large
monetary bribe. On January 4, 1997, the party member returned to Hannoudi’s business with
two other men, destroyed items in Hannoudi’s shop, and arrested and jailed Hannoudi for
overcharging for goods and for “threatening the national economy in a conspiracy to undermine
Saddam Hussein.” JA 232. After being jailed for three weeks, Hannoudi stated that a security
officer allowed him to escape to Turkey, and then to the United States.
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Hannoudi added several facts to those given in his initial application when he made
statements to the asylum officer, and again when he filed his asylum application with the
Immigration Court on October 15, 1999. Hannoudi stated that he had been ordered to repair
large guns but was unable to complete the task and that was why he was jailed in 1985. He also
stated that the Ba’ath party member who wanted free car service insulted him for not being a
Ba’ath party member. In relation to his 1997 jail time, Hannoudi stated that he was given only
one meal per day, that he was always cold, and that he was deprived of sleep. In addition, to
facilitate his escape from incarceration, Hannoudi stated that his brother paid a bribe of one and
a half million Iraqi dinars.
The asylum officer observed that Hannoudi failed to demonstrate that he was in any way
targeted on account of his Christian faith or political opinion. Furthermore, the asylum officer
found that Hannoudi could not establish a well-founded fear of future persecution on account of
a protected ground. Therefore, the asylum officer declined to grant Hannoudi’s application and
referred his case to the immigration court for removal proceedings.
During the removal proceedings, Hannoudi’s story changed even more. He testified that
when he was jailed in 1985, he was placed in an aluminum cell, which caused him to overheat.
He further testified that the Ba’ath member that wanted free car service threatened to slit his
throat when he refused to pay the bribe sought. Hannoudi admitted that he used American
dollars, which was illegal under the regime of Saddam Hussein, but claimed that his arrest was
an excuse to target him because of his Christian religion. In addition, Hannoudi testified, for the
first time, that he was tortured following his arrest in 1997. He stated that the officers
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handcuffed him, tortured him, hit him until he bled, and tied him up like he was on a cross,
perhaps because he was a Christian.
When questioned about the abuse he encountered, Hannoudi attempted to explain the
omission of the abuse allegations from his asylum application. He offered several reasons for
the inconsistencies. Initially he blamed his interpreter, and stated that he did not know English
when he completed his initial asylum application and during his interview with the asylum
officer. Hannoudi also alleged that the interpreter might have failed to recount his story
correctly because the interpreter was a Muslim. Finally, Hannoudi stated that he was aware that
his written application contained mistakes when he submitted it to the immigration court, but
was not aware that he was allowed to make corrections.
The immigration judge found that Hannoudi was not credible and identified multiple
material inconsistencies between his written application and his testimony. First, the
immigration judge noted that Hannoudi claimed to have high grades and that he was not
admitted to the university because he was Christian. In reality, Hannoudi’s grades were actually
barely above the passing mark and Hannoudi had to take the university-admittance test twice
before he was able to pass. The immigration judge also noted the inconsistencies in Hannoudi’s
testimony regarding his prison conditions and threats he received. Finding these inconsistencies
to be material, the immigration judge “inferr[ed] from this testimony that [Hannoudi was]
making things up as he testifie[d].” JA 117. Accordingly, Hannoudi’s request for asylum,
withholding of removal, or protection under the Convention Against Torture, was denied by the
immigration judge.
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Hannoudi subsequently fired his initial attorney and hired new counsel to represent him
on appeal. The Board of Immigration Appeals dismissed Hannoudi’s appeal, finding that
inconsistencies noted by the immigration judge were material and that Hannoudi failed to
adequately explain the inconsistencies. The Board of Immigration Appeals also found that
Hannoudi failed to demonstrate that his counsel was ineffective or that he had been “prejudiced
by his former counsel’s actions or inaction.” Accordingly, the Board of Immigration Appeals
denied Hannoudi’s motion to reopen and remand his case.
ANALYSIS
Hannoudi argues that his counsel’s deficiencies denied him his due process right to a full
and fair hearing. The Board of Immigration Appeals found that Hannoudi did not establish that
his counsel was ineffective or that he had been prejudiced by his former counsel’s actions. In his
brief before this Court, Hannoudi has presented no evidence that the Board of Immigration
Appeals was incorrect in its findings. Rather, he attempts to offer more reasons why his counsel
was ineffective.
Hannoudi argued before the BIA that he was denied a full and fair hearing because his
counsel was ineffective for failing to draft adequate affidavits for his witness, for failing properly
to clarify inconsistencies in the record, for failing to rehabilitate Hannoudi, and for failing
properly to admit a psychological evaluation. See Huicochea-Gomez v. INS, 237 F.3d 696, 699-
700 (6th Cir. 2001). The BIA found, however, that Hannoudi had failed to identify any
information which should have been added to the allegedly deficient affidavits, that Hannoudi
had in fact been given a change to clarify inconsistencies in the record, that there was no
indication that Hannoudi could have been rehabilitated, and that the Immigration Judge did in
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fact consider the psychological report submitted by Hannoudi’s counsel. Hannoudi has
presented no evidence that the BIA was incorrect in these findings. Instead, Hannoudi simply
attempts to list more reasons why his counsel was ineffective. This is insufficient to compel a
finding contrary to that of the BIA.
The Court therefore agrees with the Board of Immigration Appeals that Hannoudi has
failed to meet his burden of demonstrating that any deficiencies on the part of his prior counsel
rendered his removal proceedings “essentially unfair.” See, Id.
CONCLUSION
For the foregoing reasons, we DENY the petition for review.
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