Tawadrus v. Ashcroft, 02-72349.

Citation364 F.3d 1099
Decision Date15 April 2004
Docket NumberNo. 02-72349.,02-72349.
PartiesMooneer Riad TAWADRUS, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Dan Korenberg (argued), Korenberg, Abramowitz & Feldun, Sherman Oaks, CA, for the petitioner.

Jennifer Lightbody (argued) and Anthony C. Payne (briefed), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-521-788.

Before: FERNANDEZ, HAWKINS, and THOMAS, Circuit Judges.

OPINION

MICHAEL DALY HAWKINS, Circuit Judge:

Mooneer Riad Tawadrus ("Tawadrus") appeals the Board of Immigration Appeals' ("BIA") affirmation of the Immigration Judge's ("IJ") decision denying him asylum and withholding of removal. Because the BIA summarily affirmed the IJ's judgment without opinion, our review is of the IJ's decision. Fajardo v. INS, 300 F.3d 1018, 1019 n. 1 (9th Cir.2002).

FACTS AND PROCEDURAL HISTORY
I. The Application and Testimony

Tawadrus is a fifty-four year old native and citizen of Egypt, where he resided with his wife and three children. He and his family are members of the Coptic Christian Church, the Egyptian branch of the Eastern Orthodox Church. Tawadrus and his wife, both engineers, founded their own engineering and construction business in 1985. The heart of Tawadrus' asylum claim is that members of certain government-controlled agencies placed economic sanctions on him for failing to convert to Islam.

Tawadrus' written application focuses on three incidents in which certain agencies withheld money due to him for his construction work — one in 1992 involving the Development and Agriculture Bank, Cairo, and two in 1995 involving the Nile General Contracting Company for Construction and Rehabilitation and the Port Said Housing Authority. As a result of receiving no payment on these projects, Tawadrus was left with "no income whatsoever even to raise and support [his] family." He was also unable to continue to earn a living as a contractor because he was known to subcontractors, banks and creditors as being delinquent with payments.

In his oral testimony, Tawadrus described two incidents in which he was beaten by unknown groups of Islamic fundamentalists. As a result of shock from the second incident, Tawadrus had a heart attack for which he was treated in both Cairo and London, where his brother lived. After remaining in London for five months, Tawadrus returned briefly to Egypt to secure a visa from the U.S. Consulate, returning to London to depart for the United States, where he entered Dallas, Texas on December 6, 1997. After exceeding his six-month authorization, the Immigration and Naturalization Service instituted removal proceedings on July 17, 1998.

II. The Removal Hearing

On September 17, 1998, the initial scheduling hearing in Tawadrus' removal proceeding took place. Normally at these preliminary hearings, the applicant concedes his identity, swears to the validity of his written application, and generally concedes to removability, but states the grounds on which he or she is seeking relief. See generally, 8 C.F.R. § 3.21 (1998) (now located at 8 C.F.R. § 1003.21). The date is then set for the hearing on the merits and the matter is continued until that time.

Tawadrus originally appeared for his preliminary hearing with his attorney, Howard Davis. Tawadrus was sworn and conceded removability and, upon recommendation of the government, Egypt was designated as the country of removal. The IJ then went off the record to select a hearing date. When they came back on the record, the following took place:

[Immigration] JUDGE [Gilbert T. Gembacz] FOR THE RECORD

Back on the record. While off the record, the Court suggested September 30 as a merit's [sic] hearing date. The respondent's counsel indicated that conflicted with his schedule because of religious reasons. The Court is going to set the matter to March 18, 1999 at 8:30 in the morning. The respondent indicated that his children were being threatened, he was an engineer, he has to get his children out of his country, he has to get his matter resolved immediately. The Court explained to him that there is[sic] approximately twelve hundred other people that this Court is responsible to hear cases. The respondent insisted that his case must be heard first. The matter will be set for 1:00 this afternoon. Counsel for the respondent indicated that he would be unavailable on such short notice to represent the respondent.

JUDGE TO MR. DAVIS

Q. Counsel, at this time, if you wished to tender a request to withdraw, I will accept it and rule upon it at this time.

A. I do request to withdraw.

Q. Very well, counsel. Your withdrawal is permitted at this time.

JUDGE TO MR. TAWADRUZ [sic]

Q. Sir, you need to come back to court at 1:00 this afternoon for your hearing. Okay. I have your documents. You need to be prepared. If you have any witnesses, your witnesses need to be present. Any supporting documents that you may have need to be presented to the court or ready for presentation to the court at that time. If you have any documents in a foreign language, they must be translated into the English language. They must be certified. The interpreter must state that the translation is correct and accurate. The translator must also state that it is — that they are competent to translate between the foreign language and English. If you have any witnesses, they should be present. The Service will have the opportunity to cross-examine your witnesses. If the Service has any witnesses, you will have the opportunity to cross-examine the Service witnesses. Do you understand?

A. Yes.

Q. Okay. It is now 11:00, sir. I will see you back at 1:00.

. . . .

JUDGE TO MR. DAVIS

Q. I apologize, counsel. You have been released.

A. Okay.

JUDGE FOR THE RECORD

There being nothing further, the matter is continued to 1:00. Thank you.

Two hours later, Tawadrus returned alone for his merits hearing, and was recorded as pro se on the record. The majority of his documents in support of his claim were not admitted by the IJ after the government objected based on failure to properly certify under 8 C.F.R. § 3.33.1 After the hearing, in which the IJ first questioned Tawadrus, followed by the government lawyer, the IJ issued a decision denying Tawadrus' claim for asylum and withholding of removal. Tawadrus, with aid of counsel this time, sought timely appeal to the BIA, which summarily affirmed the IJ's decision pursuant to 8 C.F.R. § 3.1(a)(7) (now located at 8 C.F.R. § 1003.1), despite the unique facts and constitutional issues presented.

JURISDICTION AND STANDARDS OF REVIEW

Proceedings in this case were initiated after April 1, 1997, providing jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 8 U.S.C. § 1252. Unlike questions of law, which are reviewed de novo, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000), findings of fact are "conclusive unless any reasonable adjudicator would be compelled to conclude the contrary." 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Adverse credibility determinations are reviewed under the same substantial evidence standard as findings of fact. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002).

To be eligible for asylum under IIRIRA, an applicant must demonstrate that "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" precludes return to his or her country of origin. 8 U.S.C. § 1101(a)(42)(A). To establish a well-founded fear, the petitioner must demonstrate both an objective showing of reasonable fear based on "credible, direct, and specific evidence," and a subjective showing of genuine fear of future persecution. See Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994), overruled in part on other grounds by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc). If past persecution is established, a rebuttable presumption of a well-founded fear arises, 8 C.F.R. § 208.13(b)(1), and the burden shifts to the government to demonstrate that there has been a "fundamental change in circumstances such that the applicant no longer has a well-founded fear." Baballah v. Ashcroft, 335 F.3d 981, 992 (9th Cir.2003) (quoting 8 C.F.R. § 208.13(b)(1)(I)(A)).

DISCUSSION
I. Right to Counsel

Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings. See Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985). At the time of Tawadrus' hearing, the right to counsel in an immigration proceeding is codified at 8 U.S.C. § 1362; the regulations enforcing this right can be found at 8 C.F.R. § 292.1-.6, and in the Rules of Procedure for Immigration Courts, 8 C.F.R. § 1003.16 (formerly located at 8 C.F.R. § 3.16).2

We have repeatedly explained that for an applicant to appear pro se, there must be a knowing and voluntary waiver of the right to counsel. See, e.g., Velasquez Espinosa v. INS, 404 F.2d 544, 546 (9th Cir.1968). In order for a waiver to be valid, an IJ must generally: (1) inquire specifically as to whether petitioner wishes to continue without a lawyer; see Reyes-Palacios v. INS, 836 F.2d 1154, 1155-56 (9th Cir.1988); Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir.1987); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir.1978); and (2) receive a knowing and voluntary affirmative response. See Castro-O'Ryan v. INS, 847 F.2d 1307, 1313 (9th Cir.1988); Colindres-Aguilar, 819 F.2d at 261; Rios-Berrios v. INS, 776 F.2d at 863. Failure to obtain such a waiver is an...

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