Noorani, Ahmed v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 1, 2005
Decided January 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3682
AHMED NOORANI, Petition for Review of an Order
Petitioner, of the Board of Immigration
Appeals
v.
No. A77 660 366
ALBERTO R. GONZALES*, Attorney General
of the United States,
Respondent.
ORDER
Ahmed Noorani, a citizen of Pakistan, applied for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). The immigration
judge issued a removal order against him when he failed to appear at his merits
hearing. Noorani then filed a motion to reopen, claiming that a serious illness
prevented him from attending the hearing. The IJ denied this motion, and Noorani,
with new counsel, appealed unsuccessfully to the Board of Immigration Appeals,
*
Pursuant to Federal Rule of Civil Procedure 43(c)(2), we have substituted
the current Attorney General of the United States, Alberto R. Gonzales, for his
predecessor as the named respondent.
No. 04-3682 Page 2
claiming that his original counsel had been ineffective in handling both his merits
hearing and his motion to reopen. We deny the petition.
Noorani arrived at O’Hare International Airport in 2000 without proper
documentation and requested asylum on the basis of political opinion. He retained
attorney Sakina Carbide to help him pursue his asylum case, and he was scheduled
to appear at the immigration court in Chicago for his merits hearing on April 9,
2002. Noorani failed to appear that day in court, and the IJ entered an in absentia
removal order against him. Noorani claims that he could not appear because he
was ill with the flu. He also claims that he left several phone messages at his
attorney’s office asking her to inform the immigration court of his illness and seek a
continuance, which she did not do.
After the in absentia order was entered, Ms. Carbide made a motion to
reopen on Noorani’s behalf. In support, she argued that he had been too ill to
attend his hearing because he had been “suffering from extreme dehydration,
stomach flu, and high fever.” She also submitted a doctor’s note dated April 5 to
this effect. However, she did not mention Noorani’s phone calls to her office. The IJ
denied the motion, finding that a doctor’s note dated four days before Noorani’s
hearing was not sufficient evidence that he was too ill to attend court on the actual
day of his hearing. The IJ also found that Noorani did not adequately explain why
he failed to contact either his attorney or the immigration court prior to the hearing.
At this point, Noorani obtained new counsel and appealed the IJ’s decision to
the BIA. He argued that his original attorney, Ms. Carbide, had been ineffective in
failing to follow up on his phone messages and failing to mention these messages in
the motion to reopen. The BIA affirmed the IJ’s decision and Noorani now appeals.
Noorani’s appellate brief is difficult to parse. He seems to argue that the BIA
erred in two respects: 1) it failed to consider all the evidence he presented to
support his ineffective assistance of counsel claim, and 2) it wrongly concluded that
he did not comply with all of the requirements in Matter of Lozada, 19 I&N Dec.
637 (BIA 1988), for making an ineffective assistance of counsel claim. We review a
denial of a motion to reopen for abuse of discretion. Uriostegui v. Gonzales, 415
F.3d 660, 663 (7th Cir. 2005).
Noorani first argues that the BIA did not consider evidence that he
attempted to contact Ms. Carbide and tell her he was ill. As a result, he says the
BIA wrongly concluded that he made no effort to inform the court that he would not
be able to appear.
However, a reading of the BIA’s decision shows that this was not the case.
The BIA did consider Noorani’s evidence that he tried to contact Ms. Carbide; it
No. 04-3682 Page 3
simply rejected this evidence, and for reasons that were a legitimate exercise of
discretion. The BIA mentions that Noorani asserted in an affidavit “that his former
counsel did not respond to his ‘numerous messages’. . . .” It also mentions that
Noorani produced phone records showing calls placed by him to Ms. Carbide’s office
between April 2 and April 4, 2002. But, as the BIA explains, Noorani failed to show
how those circumstances prevented him from showing up in court on the day of his
hearing. See Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir. 2004) (documenting illness
not enough; petitioner must explain why illness prevented petitioner from
appearing on day of hearing). Since Noorani’s last phone call to his attorney was on
April 4 (five days before his hearing), the BIA properly determined that the
evidence did not show that Noorani was so ill that he could not attend the hearing.
The BIA also concluded reasonably that Noorani should have attempted to contact
the immigration court on his own when his attorney failed to respond to his
messages. See DeMorales v. I.N.S., 116 F.3d 145, 148–49 (5th Cir. 1997) (making
only cursory attempt to contact court after experiencing car trouble not enough to
excuse failure to appear).
Noorani is also incorrect when he says that he complied with Lozada. As we
have repeatedly explained, Lozada requires aliens who raise a claim of ineffective
assistance of counsel to 1) provide an affidavit detailing what counsel agreed to do
for the alien and how counsel’s performance was inadequate, 2) notify counsel of the
claim and give counsel a chance to respond, and 3) state whether a bar complaint
has been filed against counsel and, if not, why not. Stroe v. I.N.S., 256 F.3d 498,
504 (7th Cir. 2001); Lozada, 19 I&N Dec. at 639.
Noorani argues that the BIA erred when it determined that he failed to
comply with the third Lozada requirement—filing a bar complaint. Specifically, he
claims that Lozada does not require the actual filing of a complaint.
It is true that an alien may satisfy the third Lozada requirement by
explaining why a complaint was not filed, Stroe, 256 F.3d at 502, but Noorani has
not even done this. His brief to the BIA says only that a complaint will be filed in
the future. But Lozada specifically says that the motion “should reflect whether a
complaint has been filed . . . .” Lozada, 19 I&N Dec. at 639; see also Al Hamid v.
Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003) (“The fact that a grievance will be filed,
without more, does not satisfy Lozada’s requirement that a complaint be filed before
the affidavit is submitted to the BIA . . . .”). If promising to file a complaint in the
future were all a petition needed to do, Lozada’s purpose of deterring false claims
against attorneys would be undermined. See Stroe, 256 F.3d at 501. In addition, a
statement that a complaint will be filed does not, by itself, explain why a complaint
has not been filed. Al Hamid, 336 F.3d at 469. On the contrary, such a statement
suggests that filing a complaint is feasible and that the petitioner lacks a good
explanation for failing to file.
No. 04-3682 Page 4
Noorani claims that he did eventually file a complaint in October 2002, and
to his brief he attaches letters from the Illinois Attorney Registration and
Disciplinary Commission responding to his complaint. However, as the government
points out, these letters were not filed with the BIA and so are not part of the
administrative record. Yadegar-Sargis v. I.N.S., 297 F.3d 596, 598 n.1 (7th Cir.
2002).
We DENY this petition.