Sako v. Gonzales

• Decision Date: 20 January 2006
• Docket Number: No. 04-3426.,04-3426.
• Citation: 434 F.3d 857
• Parties: Raid Shaba SAKO, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

434 F.3d 857

Raid Shaba SAKO, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 04-3426.

United States Court of Appeals, Sixth Circuit.

Submitted: October 25, 2005.

Decided and Filed: January 20, 2006.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Alan M. Anzarouth, San Diego, California, for Petitioner. Ethan B. Kanter, Michael P. Lindemann, United States Department of Justice, Washington, D.C., for Respondent.

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and ROSE, District Judge.^*

BOGGS, Chief Judge.

The Fifth Amendment to the Constitution guarantees due process of law to aliens in a removal proceeding. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). When an alien makes a claim of ineffective assistance of counsel in a removal proceeding he "carries the burden of establishing that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to prove that he has suffered a denial of due process." Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir.2005). In this case, petitioner Raid Sako does not assert prejudice because an appeal of his removal proceeding would have been successful. Rather, the only claimed prejudice is denial of an opportunity to remain in this country while awaiting the outcome of the appeal — the appeal that his attorneys failed to file. We hold that denial of this opportunity does not constitute a denial of due process. Moreover, we hold that the Board of Immigration Appeals ("BIA") did not abuse its discretion in denying Sako's motion to reopen based on its finding that Sako had not shown prejudice. Accordingly, we affirm.

In this case, Sako appeals the denial of his motion to reopen removal proceedings due to ineffective assistance of counsel. The immigration judge ordered Sako removed to Iraq and the order was affirmed on administrative appeal. Subsequently, Sako moved to reopen the proceedings, alleging that two of his former counsel were ineffective in failing timely to petition for judicial review of his administrative appeal, and requesting that the matter be reopened to permit the filing of a petition for judicial review. The motion was denied because Sako failed to show prejudice, even though he complied with most of the procedural requirements for an ineffective assistance claim.

I

Sako is a native and citizen of Iraq, born and raised in Baghdad. On March 5, 1998, he applied for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. Sako claims that he suffered both religious and political persecution as a minority Chaldean Christian in Iraq under the regime of Saddam Hussein before leaving in 1992. He lived in Greece for four years and eventually entered the United States. Sako's asylum application, and his testimony before an immigration judge ("IJ") on March 12, 1998, alleged the following details.

Upon entering high school, Sako was subjected to pressure from fellow students to join the dominant Baath Party. At the same time, in Arabic language and Islamic religion classes, Sako began to feel that he was being discriminated against as a Christian. He claims that he was slapped and pulled about by the cross which he wore upon his neck by a teacher in class when he questioned an assignment to memorize certain Islamic dogma. Subsequently, he was given a failing grade in Arabic. Sako switched schools. In 1989, when he was nineteen, Sako was accused of vandalizing a classroom portrait of Saddam Hussein. Although he denied the accusation, Sako was called a "dirty Christian" and hit by six other students. He was then taken into police custody, where questioning about the incident commenced. Sako testified that he was beaten with a three-foot-long stick for about fifteen minutes and then detained at the police station in a cell-like room for two to three days before his release. He claims that he was re-arrested one week later, beaten for a few minutes and returned to the cell for about one week, when he was again released. Because of his absence from school during this time, Sako was unable to take examinations and fell one year behind in his studies.

Sako's high school performance was distinguished enough to qualify him to attend a prestigious university. However, because of his Christian identity, he was directed to attend a technology institute instead. While attending the institute, Sako testified that he participated in Bible study with three other students at the house of his friend. On one particular occasion in 1992, Sako claims all of the Bible study participants were arrested when police forced their way into the residence. The four were taken to the police station and Sako was accused and questioned about forming a Christian political party. During the interrogation, Sako claims he was beaten about the head and neck and then detained overnight in a small room with bars on the windows. The next day, Sako was blindfolded and the questioning continued. His interrogators asked Sako why he remained in the country as a Christian, since he did not belong there. Sako's testimony claims that his detention continued and three to four days later he was questioned by two men in the same room where he was hit with a heavy belt. This pattern continued, with interrogation and beating occurring every week to ten days. Sako adds that he was forced to do hard labor and to clean toilets.

At some point, Sako claims that a guard informed him that he was being detained in the "general jail" and that, if Sako had money, his escape could be bought. Sako gave the guard the address of his uncle in Baghdad who could provide the money, and in two weeks the guard informed him that his escape was ready. Sako testified that in April 1992, he was given a work assignment loading bricks and that while working, the same guard directed him to a door that would lead out of the prison. Sako followed the guard's instructions, exited the prison, and entered a waiting taxi just outside the prison walls. From there, he was driven to his uncle's house in northern Iraq where he stayed twenty to thirty days before making plans to leave the country.

After delivering this testimony, Sako was cross-examined by the counsel for the government. He acknowledged that he had never engaged in any political activity or protest while in Iraq. Sako admitted that he had not been denied a chance to attend university, but that he had not applied because he knew he would be rejected. The government then questioned Sako about the Bible, specifically, regarding how long he had been studying it, the names of the gospels, and the names of the first and last books of the New Testament. Sako replied that he had been studying the Bible for "some period of time." As to the names of the gospels, Sako answered Luke, John, Thomas, and Peter. He could not name the last book of the Bible and identified the first book as the Life of Jesus. The government also asked if Sako could name a book written by the disciple Paul and, according to the IJ, Sako "struggled," but eventually identified Corinthians. The government then questioned Sako about his escape from prison. Sako testified that he was alone in the taxi that ferried him from prison, that the journey to the north took about six hours, and that, although there were checkpoints along the highway, they were never stopped by the soldiers who were posted at them.

The IJ's opinion assessed "the rationality, internal consistency, and inherent persuasiveness" of Sako's testimony and concluded that he was not credible. The IJ noted an almost complete lack of corroborative evidence and found that Sako's testimony, even if true, failed to establish either past persecution or a well-founded fear of future persecution on either religious or political grounds.

Specifically regarding his credibility, the IJ found Sako's knowledge of the Bible scanty for someone who claimed to be a Bible student. "Despite his claim of diligent study of the Bible, [Sako] was unable to answer the most fundamental questions concerning the Bible, such as, the principle [sic] gospels relating to the New Testament and the name of the last book of the Bible." The IJ went on to note that "the Chaldean Bible is not significantly different from that of the general Christian church [in] that the gospels are that of Matthew, Mark, Luke, and John." Further, the IJ found it significant that Sako could not identify the last book of the Bible as Revelations.

The IJ also found Sako's prison escape story "not sufficient to raise the credibility of his claim." That Sako could exit the prison, "a well-known" facility in Baghdad, enter a waiting taxi and drive away successfully without any inquiries from guards or other authorities, the IJ found, "lacks the ring of authenticity." The IJ also found it "implausible" that a lone young man could travel six hours in a taxi along the main roads of Iraq towards the north in 1992 without being stopped at manned checkpoints. Further, the IJ found that Sako's treatment in class did not constitute past persecution because he had not met his burden of proving that any mistreatment was on account of his religious identity. Rather, the IJ opined that Sako's deprivation of an opportunity for higher education was more likely attributed to his refusal to apply to university, or to perform certain required tasks while in high school. The IJ found that any corporal punishment in high school, although it "may be condemned in the United States," did not rise to religious persecution.

Finally, regarding Sako's alleged persecution for participating in a Bible study group, the IJ doubted the basic premise of the allegation because Sako's knowledge of the Bible was so deficient. Further, the IJ found Sako's description of his detention too generic to be believed, while also noting a complete lack of corroborative evidence. For all these reasons, the IJ concluded that Sako "has failed to establish...