400 F.3d 785 (9th Cir. 2005), 03-70803, Mohammed v. Gonzales

Docket Nº:03-70803, 03-72265.
Citation:400 F.3d 785
Party Name:Khadija MOHAMMED, Petitioner, v. Alberto R. GONZALES, [*] Attorney General, Respondent. Khadija Ahmed Mohamed, Petitioner, v. Alberto R. Gonzales,* Attorney General, Respondent.
Case Date:March 10, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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400 F.3d 785 (9th Cir. 2005)

Khadija MOHAMMED, Petitioner,

v.

Alberto R. GONZALES, [*] Attorney General, Respondent.

Khadija Ahmed Mohamed, Petitioner,

v.

Alberto R. Gonzales,* Attorney General, Respondent.

Nos. 03-70803, 03-72265.

United States Court of Appeals, Ninth Circuit.

March 10, 2005.

Argued and Submitted Nov. 3, 2004

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Rochelle A. Fortier Nwadibia, Esq., Privitera & Nwadibia, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Emily Anne Radford, Assistant Director; Keith I. Bernstein, Joshua E. Braunstein, 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.

Before REINHARDT, THOMPSON, and MARSHA S. BERZON, Circuit Judges.

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OPINION

REINHARDT, Circuit Judge.

Female genital mutilation involves the cutting and removal of all or some of a girl or a woman's external genitalia. Often performed under unsanitary conditions with rudimentary instruments, the procedure is "extremely painful" and "permanently disfigures the female genitalia ... expos[ing] the girl or woman to the risk of serious, potentially life-threatening complications." In re Kasinga, 21 I. & N. Dec. 357, 361 (BIA 1996); see also Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004); Abankwah v. INS, 185 F.3d 18, 23 (2d Cir. 1999). Khadija Ahmed Mohamed, 1 a native and citizen of Somalia, seeks to reopen her asylum, withholding of removal, and Convention Against Torture ("CAT") claims on the basis of her first attorney's failure to present evidence that she suffered this grave harm in the past. We must consider whether the attorney's failure to raise the issue of the genital mutilation to which Mohamed had been subjected as a child constitutes ineffective assistance of counsel sufficient to warrant reopening.

I. FACTUAL AND PROCEDURAL HISTORY

Mohamed applied for asylum when she was seventeen years old. She claimed that she had a well-founded fear of future persecution on account of her membership in a social group--the Benadiri clan. According to Mohamed, her family fled Somalia during the civil war, when she was a young child. The flight was precipitated by the disappearance of her father and brother, the rape of her sister, and an attempt by the militia of a majority clan to imprison her family along with other members of her clan. She lived in Ethiopia for a number of years without legal status, before arriving in the United States.

Following a hearing, the IJ denied Mohamed's petition, finding her not credible. Alternatively, the IJ concluded that, even if she were credible, she did not demonstrate eligibility for asylum, or entitlement to withholding or to protection under CAT. The BIA affirmed the IJ's adverse credibility finding and declined to consider whether Mohamed would have established eligibility for relief had she testified credibly.

A. Mohamed's First Motion

After the BIA denied her appeal, Mohamed hired a new attorney who filed a motion to reconsider and remand. The motion asked the BIA to reconsider on the ground that Mohamed feared that she would be subjected to genital mutilation should she be returned to Somalia. 2 It stated that over ninety-eight percent of women in Somalia are subjected to such mutilation, 3 that Mohamed's first attorney

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did not raise the issue at the hearing or on appeal, and that Mohamed had not yet been genitally mutilated. The last assertion--that Mohamed had not yet been mutilated--was directly contradicted by the attached physician's report, which stated that the "patient recollects having clitoris cut off with scissors at young age," and is "absent" a "clitoris" and a "prepuce." Also attached to the motion was a letter from Mohamed's prior counsel, in which she admitted that she failed to ask her minor client whether she had been subjected to genital mutilation and did not consider raising it as part of the asylum claim, although she believed that such treatment was "clearly past persecution" (and although the State Department reports contained in the record of the hearing stated that "virtually all" Somalian women were victims of that practice).

In its opposition, the government argued, first, that Mohamed's motion did not qualify as a motion to reconsider, because it did not specify errors of fact or law in the prior decision. Second, it contended that Mohamed did not comply with the requirements for a motion to remand for consideration of new evidence because she sought to introduce evidence that could have been presented at the hearing. Finally, it argued that, to the extent Mohamed sought to reopen on the ground of ineffective assistance of counsel, she failed to comply with the BIA's procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

Mohamed filed a response to the government's opposition stating that she had complied with Lozada. Additionally, she attached a declaration and a copy of a complaint form that she had previously sent to the State Bar of California. The documents stated that Mohamed had already been subjected to female genital mutilation, and made clear that she sought to claim asylum, withholding, and protection under CAT on the basis of this past experience. In her declaration Mohamed wrote: "I then hired a new attorney ... where I learned that my subjection to female genital mutilation constituted past persecution and torture." Similarly, on the State Bar of California complaint form, Mohamed alleged that her first attorney "[f]ailed to raise issue of past persecution on account of female genital mutilation." The government requested that the BIA allow additional time for Mohamed's first counsel to respond to her allegations, although her response was attached to the motion.

One month later, the BIA issued a decision rife with errors and inconsistencies. The last paragraph of the decision was the only portion that addressed Mohamed's motion. There, the BIA appears to have properly construed the motion as a motion to reopen. It found, however, that the "request for reopening fails notwithstanding her ineffective assistance of counsel claim" because "no evidence was presented with the motion that establishes that [female genital mutilation] would likely be performed ... in the future." Yet, the BIA then inexplicably concluded its opinion by "find[ing] that the new evidence therefore does likely change the result of these proceedings." (emphasis added).

Mohamed petitioned for review of the BIA's denial of her motion. 4

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B. Second Motion

Simultaneously with filing her petition for review, Mohamed filed another motion, this time styling it as a motion to reopen. Again, she alleged that her prior counsel was ineffective in failing to raise the issue of female genital mutilation. She stated that her claim was based on past persecution and that she indeed had been mutilated as a child, and she explained that "the previous motion for reconsideration contained a scribner's error." 5 Attached to the motion were the State Bar of California complaint form against the first counsel, first counsel's letter, Mohamed's declaration, the physician's report, and a report on female genital mutilation from the World Health Organization.

The BIA denied Mohamed's second motion as numerically barred. Nevertheless, it turned to the substance of the motion and attempted to clarify its first opinion. It acknowledged its "typographical errors" and explained that Mohamed "did not demonstrate any prejudice resulting from her prior counsel's representation such as would affect the outcome of her case and would amount to a due process violation." Alternatively, the BIA considered the motion as a motion to reconsider and concluded that, "[t]o the extent that the current motion is subject to being construed as a motion to reconsider, we find that it must be denied because [Mohamed] has not demonstrated any substantive error in our [first] decision...."

Mohamed petitioned for review of the BIA's decision denying her second motion. We granted her motion to consolidate review of the two orders denying her motions to reconsider and reopen. Two days before we heard oral argument, the government moved to remand the case so that the BIA could reconsider and clarify its decisions. 6

II. ANALYSIS

We have jurisdiction over Mohamed's petitions for review pursuant to 8 U.S.C. § 1252. We review BIA rulings on motions to reopen and reconsider for abuse of discretion and reverse only if the Board acted arbitrarily, irrationally, or contrary to law. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We review factual findings for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). Questions of law, including claims of due process violations

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due to ineffective assistance, we review de novo. Id.

A. Procedural issues

As described above, Mohamed's case is characterized by a series of errors committed by the agency responsible for adjudicating her claim, and by her attorneys. 7 Before considering the question whether Mohamed has demonstrated ineffective assistance sufficient to warrant reopening, we must address the procedural complications raised by the "woefully inadequate" adjudication and representation below. See Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2004).

Mohamed's first motion, which was filed as a motion to reconsider and remand, erroneously stated that Mohamed feared future female genital mutilation. Nonetheless, the attached documents, including Mohamed's affidavit and the physician's report, made clear that the claim was based on past persecution, and the motion unambiguously asked the BIA to consider her former...

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