362 F.3d 461 (8th Cir. 2004), 03-2063, Al Khouri v. Ashcroft

Docket Nº:03-2063.
Citation:362 F.3d 461
Party Name:Chehade Dib Lichaa AL KHOURI, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
Case Date:April 01, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 461

362 F.3d 461 (8th Cir. 2004)

Chehade Dib Lichaa AL KHOURI, Petitioner,

v.

John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-2063.

United States Court of Appeals, Eighth Circuit

April 1, 2004

Submitted: March 10, 2004.

Timothy E. Wichmer, argued, St. Louis, Missouri, for petitioner.

Larry P. Cote, argued, Washington, D.C. (Peter D. Keisler, Richard M. Evans, and Timothy P. McIlmail on the brief), for respondent.

Before RILEY and MELLOY, Circuit Judges, and ERICKSON,1 District Judge.

Page 462

MELLOY, Circuit Judge.

Mr. Chehade Dib Lichaa Al Khouri, a Lebanese citizen, petitions for review of the Board of Immigration Appeals' (BIA) decision, affirming without opinion the Immigration Judge's (IJ) denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Because we find that Mr. Al Khouri was denied a full and fair hearing on his claims for relief before the IJ, we grant Mr. Al Khouri's petition for review of the BIA's decision and remand for a new hearing.

I.

Mr. Al Khouri left Lebanon in January of 1998. In Lebanon, Mr. Al Khouri was employed as a taxi cab driver, and he claims that Syrian2 and Hizballah3 forces stopped him on several occasions and attempted to recruit him to transport people and weapons. Mr. Al Khouri never explicitly refused their requests, nor did he acquiesce. According to Mr. Al Khouri, two days before he fled Lebanon, Syrian soldiers pulled him from his car and beat his bare feet in front of his wife and children. He also testified that Syrian and Hizballah forces have gone to his house in search of him, and he believes that his mistreatment is due to his refusal to cooperate with their efforts to recruit his assistance and because he is Christian.

Mr. Al Khouri arrived in the United States using a fraudulent visa. The Immigration and Naturalization Service (INS) placed him in removal proceedings in February of 1999. INS charged Mr. Al Khouri with misrepresentation and failure to possess entry documents into the United States. Mr. Al Khouri conceded these charges, and, therefore, the IJ found him removable. Mr. Al Khouri immediately sought relief from removal and indicated his intent to file for political asylum and withholding of removal and to seek relief under the Convention Against Torture. Accordingly, the IJ scheduled an individual hearing on the merits of these claims for May of 2000. At this hearing, the IJ denied relief and ordered that Mr. Al Khouri be removed from the United States to Lebanon.

Mr. Al Khouri was initially represented by an attorney, Ms. Suzanne Brown. However, because Mr. Al Khouri failed to pay her for her services and failed to communicate with her to prepare his case, she notified him six months before his merits hearing that she intended to withdraw. Mr. Al Khouri, however, did not contact Ms. Brown to make financial arrangements or to prepare his case, despite the risk that he would be forced to proceed without counsel. In a certified letter dated February 29, 2000, Ms. Brown informed Mr. Al Khouri that she had filed a motion to withdraw as his attorney, and she advised him that he should find another lawyer.

Page 463

Because the IJ had not ruled on Ms. Brown's motion to withdraw, she appeared at Mr. Al Khouri's merits hearing on May 25, 2000. There, she renewed her motion to withdraw. The IJ granted her request and explained to Mr. Al Khouri that he could go forward without counsel or could withdraw his application and accept the departure order. The IJ refused to grant Mr. Al Khouri a continuance, and Mr. Al Khouri opted to proceed without counsel. In addition, before leaving the hearing, Ms. Brown gave Mr. Al Khouri a copy of his 200-page application. This application details all the circumstances that would support Mr. Al Khouri's claim. The application was written in English. Mr. Al Khouri's native language is Arabic. An interpreter was present at the hearing, and the IJ recessed court for ten minutes to give Mr. Al Khouri an opportunity to review his voluminous application with the interpreter.

At the beginning of the hearing, the IJ told Mr. Al Khouri that he had reviewed all the documents submitted into evidence. In addition, the IJ specifically asked Mr. Al Khouri if the information in his application was correct. Mr. Al Khouri responded that it was, and, therefore, the IJ instructed him to sign the statement under oath and admitted the statement into evidence.

Because Mr. Al Khouri was acting pro se, the IJ questioned him about the basis of his claims. He instructed Mr. Alkhouri,

Now, sir, what's going to happen next is that I'm going to ask you questions, since you're not represented about your claim. In other words to go into your case. The way I'm going to elicit, that is bring out the information is by questions and answers. I don't want you to tell me your whole story, just answer one question.

Tr., at 21; Joint App., at 103 (emphasis added ).

At the conclusion of the hearing, the IJ determined that Mr. Al Khouri was not credible and that he did not merit relief from the removal order on any of the grounds asserted in his application. Pertinent to this appeal, the IJ's adverse credibility determination was based in substantial part on the differences between Mr. Al Khouri's testimony and his application. In particular, the IJ highlighted in his oral decision that he,

concluded that [Mr. Al Khouri's] testimony is not really reliable. I have reached that conclusion because of the omission of many of the averments or statements contained in the application about his experience. If the events occurred as he described in his statment [sic], he had a very different experience and for very different reasons than that which he has described in his testimony today.

Oral Dec. of the IJ, at 7; Joint App., at 74 (emphasis added ).

II.

Mr. Al Khouri appealed the IJ's decision denying him relief to the Board of Immigration Appeals. The BIA affirmed the decision without opinion pursuant to 8 C.F.R. § 3.1, which sets forth a streamlined procedure wherein a single member of the BIA, rather than the usual three-member review, summarily affirms the outcome reached by the IJ but not necessarily the IJ's reasoning. Therefore, for purposes of this petition for review to our court, we review the IJ's findings as though they had been made by the BIA. Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir. 2003) (citing 8 C.F.R. § 1003.1(a)(7)). Our standard of review for legal determinations is de novo. INS

Page 464

v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) .

A.

Mr. Al Khouri requested a continuance after Ms. Brown's withdrawal so that he could procure a new lawyer. He argues that his due process rights were violated when the IJ granted Ms. Brown's motion to withdraw, denied his motion for a continuance, and forced him either to proceed pro se or to accept the departure order. We reject this argument and find that the IJ did not abuse his discretion when he refused to continue Mr. Al Khouri's removal hearing and that there was no denial of Mr. Al Khouri's right to counsel.

It is well-settled that, while there is no Sixth Amendment right to counsel, Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002), aliens have a statutory right to counsel at their own expense, 8 U.S.C. § 1229a(b)(4)(A), and are entitled to the Fifth Amendment's guarantee of due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). In certain circumstances, depriving an alien of the right to counsel may rise to the level of a due process violation. United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995).

No such violation occurred here, however. First, aliens are free to waive their statutory right to counsel, which Mr. Al Khouri did. See id. ("An alien may voluntarily waive representation by counsel, however, and that waiver will be respected."). Second, Mr. Al Khouri is entirely to blame for the situation that unfolded at his hearing which resulted in his proceeding without representation of counsel. It would be nonsensical to recognize a constitutional entitlement to a continuance based on counsel's withdrawal when petitioners themselves are responsible for the withdrawal.

Six months before the hearing, Ms. Brown warned Mr. Al Khouri that, if he did not contact her to make payment arrangements and to prepare his case, she would withdraw her representation. Three months before the hearing, she informed him that she indeed filed a motion to withdraw with the court, and she advised Mr. Al Khouri to find another attorney. An IJ has wide discretion to manage his or her docket, and it was not an abuse of discretion to deny Mr. Al Khouri's request for a continuance, especially where Mr. Al Khouri had more than sufficient notice of and bore the blame for...

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