Betouche v. Ashcroft
Decision Date | 12 February 2004 |
Docket Number | No. 02-2518.,02-2518. |
Citation | 357 F.3d 147 |
Parties | Selim BETOUCHE, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent. |
Court | U.S. Court of Appeals — First Circuit |
Saher Joseph Macarius was on brief for petitioner.
Joshua E. Braunstein, Attorney, Peter D. Keisler, Assistant Attorney General, and Emily Anne Radford, Assistant Director, were on brief for respondent.
Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and OBERDORFER*, Senior District Judge.
Petitioner-appellant Selim Betouche challenges various rulings by the Board of Immigration Appeals (BIA) declining to reopen the proceedings relating to his asylum application, in which he claimed that he received ineffective assistance of counsel and that conditions in his native Algeria have deteriorated since the entry of the final deportation order. We affirm.
Betouche, a citizen and native of Algeria, entered the United States in July 1996 on a three-month visa and remained beyond its expiration. In due course, the Immigration and Naturalization Service (INS) lodged a removability charge, and Betouche retained Desmond Fitzgerald, Esquire, to litigate the applications for asylum and withholding of deportation.1 On August 13, 1998, an immigration judge (IJ) denied the applications for asylum and withholding, and found Betouche removable. Two days after the deadline, Attorney Fitzgerald filed a belated appeal to the BIA, which was summarily denied as untimely.
In May 2002, Betouche submitted a motion to reopen his case before the IJ, contending that political conditions in Algeria had changed since August 1998. The IJ denied the motion on the ground that Betouche failed to adduce any evidence of "materially changed" conditions.
Betouche retained new counsel, who appealed to the BIA and moved to reopen on the ground that Attorney Fitzgerald had rendered ineffective assistance of counsel in 1998 by filing the Betouche appeal two days late with the BIA, thereby resulting in its dismissal. The petition to reopen further alleged that Attorney Fitzgerald deliberately concealed the BIA dismissal from Betouche for more than three years.
In rejecting the appeal, the BIA (i) upheld the IJ's finding that Betouche had adduced no evidence of "changed conditions" in Algeria, and (ii) turned down his "ineffective assistance" claim for failure to adduce either an affidavit describing the terms under which Betouche retained Attorney Fitzgerald, or any evidence that Betouche had notified Attorney Fitzgerald either as to his "ineffective assistance" allegations or his September 2002 complaint to the Massachusetts Board of Bar Overseers. Betouche has petitioned to review both BIA rulings.
Deportable aliens possess a Fifth Amendment due process right to be free from incompetent legal representation which renders their deportation proceedings "fundamentally unfair." Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir.2001); see also 8 U.S.C. § 1362 ( ). The BIA denied the ineffective assistance claim due to Betouche's failure to comply with the first two of the three following BIA procedural requirements applicable to such claims: (1) an affidavit describing in detail the agreement between the alien and his counsel regarding the litigation matters the attorney was retained to address; (2) evidence that the alien informed his counsel as to the alien's ineffective assistance allegations and afforded counsel an opportunity to respond; and (3) evidence that the alien had either filed a complaint with the appropriate disciplinary authority regarding the attorney's ethical or legal misfeasance, or a valid excuse for failing to lodge such a complaint. Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) ("Lozada").2
On appeal, Betouche contends that he complied with the Lozada criteria in full.3 The BIA ruling rejecting the motion to reopen is reviewed only for an abuse of discretion. See Zhang v. INS, 348 F.3d 289, 292 (1st Cir.2003). We find none.
Betouche conveniently assumes that the September 10, 2002 letter, which he submitted to the Board of Bar Overseers, met the Lozada affidavit requirement.4 However, an unsworn letter plainly cannot qualify as an affidavit in a proceeding such as this. See, e.g., Mason v. Clark, 920 F.2d 493, 495 (8th Cir.1990) () (citation omitted); Howland v. Cape Cod Bank and Trust Co., 26 Mass.App.Ct. 948, 526 N.E.2d 1073, 1074 (1988) (same).5
Nor can such a deficiency be considered a mere technicality, given that Lozada advanced important policy reasons for insisting upon the submission of a sworn statement. Since a delay in deportation may itself constitute a substantial boon to an alien already subject to a final deportation order, there exists a significant prospect that entirely meritless and/or collusive ineffective assistance claims may be filed for purely dilatory purposes. See Hernandez, 238 F.3d at 55 ( ). The immigration courts, which reasonably cannot be expected to conduct a full-fledged evidentiary hearing for all such claims, must be able to impose fair and efficacious techniques for screening out, ab initio, the numerous groundless and dilatory claims routinely submitted in these cases. See In re Rivera-Claros, 21 I. & N. Dec. 599, 604-05 (BIA 1996). Thus, the requirement of a sworn affidavit, presaging and memorializing the testimony which the alien petitioner would present were he to be accorded a hearing, produces the primary evidentiary basis upon which the IJ evaluates the bona fides of the petitioner's claim in determining whether a hearing is even warranted. See id. Moreover, by exposing an alien to the potential pains of perjury, the affidavit requirement "`foster[s] an atmosphere of solemnity commensurate with the gravity of the [ineffective assistance] claim[s],'" Reyes v. Ashcroft, 348 F.3d 1126, 1131 (9th Cir.2003) ( )(citation omitted), and serves as a screening device whereby deportable aliens are discouraged from filing dilatory ineffective assistance claims.
Finally, even assuming that the Lozada-affidavit requirement might be excused, in some circumstances — beyond the alien petitioner's control — which prevented compliance, see Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124-25 (9th Cir.2000) ( ); In re Rivera-Claros, 21 I. & N. Dec. at 602-03, Betouche proffers no explanation for his failure even to describe an ineffective assistance claim in affidavit form.6
Furthermore, Betouche utterly failed to comply with the second Lozada requirement: that he demonstrate that he had advised Attorney Fitzgerald of his allegations and accorded Fitzgerald an opportunity to respond. Although Betouche cursorily represented in his appellate brief before the BIA that his attorney "ha[d] been given an opportunity to respond," the BIA correctly noted that he adduced no evidence of that notification, such as a copy of a letter from Betouche to his attorney. See Lozada, 19 I. & N. Dec. at 639 (); see also Reyes, 348 F.3d at 1132 () .
In addition, the September 2002 letter from Betouche to the Board of Bar Overseers simply established that Betouche had notified the Board of Bar Overseers of his complaint, not that either he or the Board had notified Attorney Fitzgerald. The November 12, 2002 letter, in which Attorney Fitzgerald implicitly acknowledged notice of the September 2002 Bar complaint, plainly was not part of the administrative record when the BIA issued its October 31, 2002 decision, and therefore is to be disregarded in the instant appeal. See Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003) (citing 8 U.S.C. § 1252(b)(4)(A)). As Betouche inexcusably failed to comply with the first two Lozada requirements,7 the BIA did not abuse its discretion in denying the motion to reopen.8
Next, Betouche contends that the BIA erred in rejecting his motion to reopen the deportation proceedings, given that conditions in Algeria had deteriorated significantly between August 1998 and April 2002.9 By way of proof, Betouche points to a 2001 State Department Human Rights Report, as well as "recent [newspaper] articles" and "affidavits," to demonstrate that serious political unrest "persisted" in Algeria, thus allegedly exposing Betouche to an increased risk of being targeted by Islamic fundamentalists in the event he were to return to Algeria. See 8 U.S.C. § 1229a(c)(6)(C)(ii) ( ). We find no abuse of discretion in the BIA denial. See Zhang, 348 F.3d at 292.
Betouche included none of the above-described reports, articles, and affidavits in the administrative record before the BIA. Thus, even if Betouche were to have produced these materials on the instant appeal (which he did...
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