Ashraf Habib v. Loretta E. Lynch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3370
ASHRAF HABIB,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an order of the
Board of Immigration Appeals.
No. A076 203 300
____________________
ARGUED APRIL 28, 2015 — DECIDED MAY 29, 2015
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Ashraf Habib, a 56-year-old citizen
of Pakistan, petitions for review of an order of the Board of
Immigration Appeals denying his motion to reopen on the
ground of ineffective assistance of counsel. Habib was charged
with removability for misrepresenting a material fact—his
marital status in Pakistan—to gain residency. At a hearing be-
fore the immigration judge, Habib’s lawyer made a couple of
missteps that led to Habib being ordered removed on the
2 No. 14-3370
ground that he had obtained immigration benefits based on a
material misrepresentation. Habib filed an appeal with the
Board, as well as a motion to reopen based on ineffective assis-
tance of counsel. The Board affirmed the IJ’s decision and re-
jected Habib’s arguments that his lawyer was ineffective. We
conclude that the Board abused its discretion when it deter-
mined that Habib was not prejudiced by his lawyer’s mistakes,
and we grant Habib’s petition for review.
I. BACKGROUND
In the late 1980s, Habib married a woman in Pakistan and
had three children with her in that country. It is unclear when
or how Habib came to the United States after these events (the
record shows only that he entered the country in 1981 on a
tourist visa). But in 1996, he married Ruby Bualice, a
U.S. citizen, and three years later adjusted his status to that of
lawful permanent resident based on that marriage. Habib did
not disclose any children or prior marriages in his application
to adjust status or during the related interview. He applied for
naturalization in 2004 and again neglected to list any children
or prior marriages on the form. When interviewed the follow-
ing year by officials of United States Citizenship and
Immigration Services (USCIS), he told them that Bualice was
his first wife.
USCIS denied Habib’s application for naturalization in 2010
on the ground that he had obtained lawful permanent residen-
cy by fraud and thus was ineligible for naturalization.
See 8 C.F.R. § 316.2(a)(2). (Bualice died in 2008, before USCIS
ruled on Habib’s application.) In its decision, USCIS explained
that its “investigation revealed” that when Habib married
Bualice and obtained permanent residency based on that mar-
No. 14-3370 3
riage, he was still married to Feroza Muhammad Arshraf, a
woman in Pakistan with whom he had fathered three children.
USCIS stated that this information was confirmed by
“[c]orrespondence from the Provincial Headquarters Sindh,
National Database and Registration Authority (NADRA) in
Karachi, Pakistan.” By not disclosing his Pakistani wife and
children on his adjustment application, USCIS concluded,
Habib had obtained immigration benefits in violation of
8 U.S.C. § 1182(a)(6)(C)(i). As further evidence of Habib’s
“fraud/misrepresentation,” USCIS cited a letter from staff at
the nursing home where Bualice had resided from 2001 until
her death in 2008. The 2006 letter stated that Habib had never
been “seen at [the] facility,” indicating that Habib “had never
gone to visit” Bualice. Habib was issued a Notice to Appear
charging him with removability under 8 U.S.C. § 1227(a)(1)(A)
as an alien who was inadmissible at the time he adjusted status
both because he had obtained permanent residency by fraud or
willful misrepresentation of a material fact, see id.
§ 1182(a)(6)(C)(i), and because he lacked a valid entry docu-
ment, see id. § 1182(a)(7)(A)(i)(I).
At the first hearing before the IJ in 2012, Habib’s attorney
stated that he had not seen the Notice to Appear but, when
given a copy of the document, nonetheless proceeded to admit
and deny the numbered allegations without consulting Habib,
who was present in the courtroom. Counsel denied allega-
tion 7, which states that Habib’s marriage to Bualice “is not le-
gally valid since [Habib was] not divorced from [his] wife in
Pakistan.” But in the next breath, counsel contradicted himself
by admitting the materially identical allegation 8, which states
that Habib was “not validly married to a United States citizen”
when he adjusted status in 1999. Counsel also admitted that
Habib had three children in Pakistan. Counsel denied, howev-
4 No. 14-3370
er, that Habib was removable. At the same hearing, the IJ asked
Habib what language he best spoke and understood. Habib an-
swered, “English,” and his lawyer agreed that this was his
“best language.”
At the beginning of the final hearing nine months later,
Habib’s lawyer for the first time submitted a document titled
“Divorce Deed” showing that Habib had divorced his
Pakistani wife in 1994, two years before his marriage to
Bualice. Counsel stated that he “believed” he previously had
submitted a copy of this divorce decree to the government. But
when the government’s attorney disputed counsel’s assertion,
counsel said that he “just got it recently.” The IJ stated that
Habib could be questioned about the divorce decree during his
testimony but reserved ruling on the admissibility of the doc-
ument.
Habib then testified, admitting that he had not listed his
first marriage or his three children on his adjustment applica-
tion. He had not intended “to deceive the Government,” he
said: He omitted the information from his application and did
not mention it during his interview (at which Bualice was pres-
ent) because he was worried that Bualice would be angry if she
learned of his first marriage and his Pakistani children. Habib
testified that he had also excluded the information from his
naturalization application so that the document would be con-
sistent with his application for adjustment. Habib talked about
his relationship with Bualice but throughout his testimony had
trouble remembering dates. He said, for example, that he lived
with Bualice from 1996 to 2003. But he also stated that they
stopped living together in 2001, after she had a brain stroke,
and he later gave 1999 as the year that they no longer shared a
residence.
No. 14-3370 5
Habib stated that he had divorced his Pakistani wife in
1994, but this testimony was immediately challenged. Both the
government’s attorney and the IJ pointed out that Habib’s tes-
timony was contrary to his lawyer’s admitting allegation 8 in
the Notice to Appear, which states that Habib’s marriage to
Baulice was invalid. In response, Habib’s lawyer mumbled
something about a “mistake” but did not move to retract the
admission of allegation 8.
Two of Habib’s friends also testified that Habib and Bualice
lived together before she went to a nursing home. Both of the
friends said that the couple’s marriage appeared to be normal.
One friend said that “they both loved each other and they were
really happily married,” and the other friend stated that they
were “a lovable couple[] to each other.”
The government submitted a letter from Pakistan’s
National Database and Registration Authority listing Feroza
Muhammad Arshraf as Habib’s wife and a partially translated
printout of Habib’s family records from the Registration
Authority’s online database. The government also submitted
the 2006 letter from Bualice’s nursing home, which states that
Habib had not visited her.
The IJ concluded that Habib was removable both because
he willfully misrepresented a material fact to obtain permanent
residency and because he had no valid entry document, and
ordered Habib removed to Pakistan. The IJ determined that
Habib’s failure to disclose his children and his first marriage
was material because the misrepresentation “cut off [a] line of
inquiry and prevented the Government from conducting a full
analysis of all factors relevant to the validity of” Habib’s mar-
riage to Bualice. Thus, the IJ determined, the government’s ev-
idence established a rebuttable presumption that Habib ob-
6 No. 14-3370
tained adjustment because of his misrepresentation. Habib did
not rebut that presumption, the IJ explained, because he had
not proved that he met the statutory requirement for admis-
sion regardless of the misrepresentation. In reaching this con-
clusion, the IJ emphasized that the divorce decree submitted by
Habib “cannot be considered because it was not timely filed
and the Government has never been given the opportunity to
inquire into the reliability of the document.” 1 Throughout the
decision, the IJ referred to counsel’s admission that Habib’s
marriage to Bualice was invalid, even mentioning in a footnote
that, although “counsel claimed” that the admission was a
“mistake,” he never “move[d] to amend his pleadings or with-
draw the admission.”
Habib obtained new counsel, appealed to the Board and,
while that appeal was pending, moved to reopen on the
ground of ineffective assistance of counsel. He maintained in
the motion that he was prejudiced by counsel’s failing to re-
quest an interpreter, counsel’s neglecting to timely submit the
divorce decree to the immigration court, and counsel’s admit-
ting allegation 8 in the Notice to Appear (that Habib’s marriage
to Bualice was invalid). In support of his motion, Habib sub-
mitted an affidavit in which he stated that he provided his
former attorney “with all the documents he requested … , in-
cluding [the] divorce decree.” He also submitted the attorney’s
response—a letter signed not by the lawyer but written on his
behalf by someone at his law firm (the signature line contains
only the firm’s name)—which stated that counsel “did not re-
1 The IJ elaborated in a footnote that her conclusion that the divorce de-
cree was not timely filed rested on subsection 3.1(b)(ii)(A) of the
Immigration Court Practice Manual, which requires that filings “be submit-
ted at least fifteen (15) days in advance of the hearing.”
No. 14-3370 7
ceive the divorce decree timely to submit it with the other doc-
uments.” Habib maintained in his motion to reopen that this
statement from counsel’s law firm was false.
In a single order, the Board adopted and affirmed the deci-
sion of the IJ and denied Habib’s motion to reopen and remand
on the basis of ineffective assistance. 2 The Board explained that
Habib was not prejudiced by counsel’s neglecting to request an
interpreter because Habib himself stated that English was “his
best language” and his motion to reopen did “not specify any
testimony that was inaccurate or incomplete because of any
language deficiency.” The Board stated that it could not con-
clude that counsel’s failure to timely submit the divorce decree
resulted from “deficient performance” because, the Board said,
neither Habib nor his former lawyer “specifies precisely when
[Habib] gave the divorce decree to counsel.” Finally, the Board
determined that Habib had not shown he was prejudiced by
counsel’s admitting that his marriage to Bualice was invalid
because, the Board explained, “DHS submitted substantial evi-
dence challenging the validity of the respondent’s marriage to
his United States citizen wife,” and Habib had admitted during
testimony that he “‘lied on purpose’ when he failed to mention
his first wife and his children” in his applications.
II. ANALYSIS
In his petition for review, Habib challenges the Board’s de-
nial of his motion to reopen based on ineffective assistance. To
reopen his proceedings on the ground that he received ineffec-
tive assistance, Habib had to (1) “comply with certain proce-
2 When a motion to reopen is filed with the Board while an appeal is
pending, the Board may treat it as a motion to remand and may consolidate
it with the pending appeal. See 8 C.F.R. § 1003.2(c)(4).
8 No. 14-3370
dural requirements,” 3 (2) “show that he was prejudiced by his
representative’s performance,” and (3) show that the “proceed-
ing was so fundamentally unfair” that he “was prevented from
reasonably presenting his case.” Solis-Chavez v. Holder, 662 F.3d
462, 466 (7th Cir. 2011). Habib contends that the Board abused
its discretion when it rejected his argument that counsel acted
ineffectively by incorrectly admitting that his marriage to
Bualice was invalid. Habib maintains that—contrary to the
Board’s conclusion—he was prejudiced by counsel’s admission
because the validity of his marriage to Bualice “went to the
heart of the government’s case” and that counsel’s mistaken
admission that the marriage was invalid “essentially undercut
any hope that Habib could reasonably present his case.”
We agree with Habib that the Board abused its discretion in
handling his ineffective assistance claim. Simply put, the Board
demonstrated a misunderstanding of the law when it stated
that Habib had not shown that “he was prejudiced by counsel’s
admission … that he was not validly married to a United States
citizen when he adjusted his status.” The government conced-
ed at oral argument that “it was definitely … a mistake by for-
mer counsel to admit that allegation.” That admission effec-
tively waived Habib’s defense to removal, and an attorney’s
waiver of a complete defense to removal prejudices the client
and warrants remand so that the agency may determine
“whether that concession rendered the administrative proceed-
ings ‘so fundamentally unfair that the alien was prevented
from reasonably presenting his case.’” Solis-Chavez, 662 F.3d
at 469; see Mai v. Gonzales, 473 F.3d 162, 166–67 (5th Cir. 2006)
3The procedural requirements are set forth in Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988), and are not at issue here because the Board decided
they were satisfied.
No. 14-3370 9
(concluding that alien’s lawyer was ineffective where effect of
lawyer’s admitting charge denied by alien “was to cut off all
available avenues of relief … without any apparent counterad-
vantage”). The government’s proving under 8 U.S.C.
§ 1182(a)(6)(C)(i) that Habib had obtained adjustment of status
by willfully misrepresenting a material fact created only a re-
buttable presumption that he had gained residency because of
the misrepresentation. Kalejs v. I.N.S., 10 F.3d 441, 446 (7th Cir.
1993); Emokah v. Mukasey, 523 F.3d 110, 117 (2d Cir. 2008);
Monter v. Gonzales, 430 F.3d 546, 557 (2d Cir. 2005). Habib could
have rebutted this presumption by proving that he was eligible
for adjustment of status despite the misrepresentation.
See Kalejs, 10 F.3d at 446; Emokah, 523 F.3d at 117; Monter,
430 F.3d at 557. Doing so would have required him to prove
that his marriage to Bualice was valid—a proposition directly
at odds with counsel’s admission that the marriage was inva-
lid.
The Board seemed unaware that the government’s estab-
lishing that Habib’s misrepresentation was material created
only a presumption of removability. The government makes the
same mistake by contending in its brief that Habib was not
prejudiced by counsel’s mistaken admission because “it did
not matter whether [Habib’s] marriage to Bualice was valid.”
The government’s argument is without merit: Once the gov-
ernment proved that Habib obtained residency by willfully
misrepresenting a material fact, the only thing that mattered
was whether his marriage to Bualice was valid. By proving that
the marriage was valid, Habib would have shown that he was
eligible for adjustment of status despite his misrepresentation
and in doing so would have rebutted the government’s case.
The government contended at oral argument that Habib was
not prejudiced because the IJ did not rely “heavily” on coun-
10 No. 14-3370
sel’s mistaken admission in deciding that Habib was remova-
ble. The government’s assertion that the IJ did not rely heavily
on this admission does little to convince us that Habib was not
prejudiced by counsel’s mistake. The IJ’s repeated references to
the admission throughout her opinion cast doubt on the gov-
ernment’s assertion and support the conclusion that counsel’s
misstep hurt Habib’s case.
Habib next argues that the Board abused its discretion by
deciding that counsel’s failure to timely submit the divorce de-
cree did not constitute ineffective assistance. Here too, we
agree with Habib that the Board abused its discretion because
the divorce decree was evidence crucial to proving that he was
legitimately married to Bualice and thus eligible for adjustment
of status regardless of his misrepresentations. Although the
Board correctly observed that Habib’s affidavit in support of
his motion to reopen did not state when he gave the divorce
decree to counsel, the Board did not mention the evidence—
counsel’s own inconsistent explanations at the removal hear-
ing—supporting Habib’s contention that counsel’s deficient per-
formance led to the untimely submission of this critical evi-
dence. See 8 U.S.C. § 1229a(c)(7)(C) (“The motion to reopen
shall state the new facts that will be proven at a hearing to be
held if the motion is granted, and shall be supported by affida-
vits or other evidentiary material.”); 8 C.F.R. § 1003.2(c)(1)
(same). As pointed out by Habib in his brief to this court (and
in the motion to reopen he submitted to the Board), counsel’s
statement to the IJ that he “just got” the divorce decree is be-
lied by counsel’s insistence at the same hearing that he thought
he had already submitted the document as evidence. The
Board did not mention this significant inconsistency in coun-
sel’s explanation, instead relying solely on the unbacked asser-
tion in counsel’s response—written in the third person and
No. 14-3370 11
signed only by the law firm—that counsel “did not receive the
divorce decree timely to submit it with the other documents”
(internal quotation marks omitted). The Board’s failure to dis-
cuss evidence tending to show that the untimely filing was
caused by counsel’s deficient performance warrants remand
because it calls into doubt whether the Board adequately con-
sidered this significant evidence. See Chen v. Holder, 782 F.3d
373, 377–78 (7th Cir. 2015) (“Where … the Board ignores a po-
tentially meritorious argument when deciding a motion to re-
open, it abuses its discretion. This principal applies to motions
to reopen based on claims of ineffective assistance.” (citations
omitted)); Boika v. Holder, 727 F.3d 735, 741 (7th Cir. 2013);
Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011).
Finally, Habib contends that the Board abused its discretion
by concluding that he had not shown prejudice from counsel’s
neglecting to request an interpreter. We agree with the gov-
ernment that this argument fails because Habib does not “iden-
tify any specific instances of what testimony or unanswered
questions prejudiced his case.”
III. CONCLUSION
Because the Board abused its discretion when denying
Habib’s motion to reopen, we GRANT the petition for review
and REMAND to the agency for further proceedings.