Habchy v. Gonzales, 05-3078.

• Decision Date: 20 December 2006
• Docket Number: No. 05-3078.,05-3078.
• Citation: 471 F.3d 858
• Parties: Boutros Chafic HABCHY, Petitioner, v. Alberto GONZALES, Attorney General; Michael Chertoff, Secretary of the Department of Homeland Security; Asa Hutchinson, Under Secretary for Border and Transportation Security; Michael J. Garcia, Assistant Secretary for Immigration and Customs Enforcement; Debbie Achim, ICE Detention and Removal Operations Field Office Director, Chicago, IL; Ken Carlson, ICE Deputy Field Office Director, Kansas City, MO; Wardell Nance, Director, ICE Detention and Removal Operations, St. Louis, MO 63108, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.3d 858

Boutros Chafic HABCHY, Petitioner, v. Alberto GONZALES, Attorney General; Michael Chertoff, Secretary of the Department of Homeland Security; Asa Hutchinson, Under Secretary for Border and Transportation Security; Michael J. Garcia, Assistant Secretary for Immigration and Customs Enforcement; Debbie Achim, ICE Detention and Removal Operations Field Office Director, Chicago, IL; Ken Carlson, ICE Deputy Field Office Director, Kansas City, MO; Wardell Nance, Director, ICE Detention and Removal Operations, St. Louis, MO 63108, Respondents.

No. 05-3078.

United States Court of Appeals, Eighth Circuit.

Submitted: September 29, 2006.

Filed: December 20, 2006.

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Timothy E. Wichmer, argued, St. Louis, MO, for Petitioner.

Michael Truman, argued, U.S. Department of Justice, Washington, D.C. (Catherine L. Hanaway and Jane Rund, on the brief), for respondent.

Before ARNOLD, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Boutros Chafic Habchy, a native and citizen of Lebanon, petitions this court for review of two decisions of the Board of Immigration Appeals ("the Board") denying him relief under this country's asylum laws. First, he argues that the Board erred in affirming the denial of his motion to reconsider a decision of the Immigration Judge ("IJ"), in which the IJ refused to reopen a removal order on the basis of ineffective assistance of counsel. Second, he argues that the Board erred in refusing to reopen his case on the basis of changed country conditions in Lebanon between 2000 and 2003. We deny the petition for review.

I. BACKGROUND

Habchy entered the United States at the Miami International Airport in 2000. He lacked proper documentation, and he immediately requested asylum. Habchy claimed that he had suffered past persecution at the hands of Hizballah, who detained him and accused him of aiding Israel. Habchy also claimed that he feared future persecution on the basis of his religion (Christianity) and his political beliefs, whether real or imputed. After a venue transfer, his case was set for a hearing before an IJ in St. Louis on November 21, 2000.

Habchy's counsel attended the hearing, but Habchy did not. Habchy's counsel moved for a continuance to locate him, but the IJ denied the motion and ordered Habchy removed in absentia under 8 C.F.R. § 1003.26(c). One month later, Habchy made a pro se motion to reopen his proceedings with the IJ. He claimed lack of notice and ineffective assistance of counsel because his lawyer had failed to provide him with notice of the hearing. While there was no question that his lawyer had received notice of the hearing, thus satisfying the regulatory requirements under 8 C.F.R. § 1003.26(c)(2), Habchy argued that the lawyer had not relayed the notice to him. According to Habchy, she sent him a letter regarding his case that did not provide the hearing date, and she failed to mention it when Habchy was in her office the day before the hearing was scheduled to take place.

The IJ denied the motion on procedural grounds, noting that Habchy failed to satisfy two of the three requirements for motions to reopen on the basis of ineffective assistance of counsel as described by the Board in Matter of Lozada, 19 I. & N. Dec. 637, 639, 1988 WL 235454 (B.I.A. 1988). In particular, Habchy failed to attach an affidavit setting forth relevant facts and the scope and terms of his representation with his former counsel, and he failed to make a formal complaint regarding her ineffective assistance with the appropriate bar association, or at least to explain why he had not taken such action. Habchy did fully satisfy one Lozada requirement by informing his lawyer of the allegations and giving her an opportunity to respond, as evidenced by the attachment of her affidavit to his motion.

Habchy did not appeal this ruling to the Board. Instead, he obtained legal counsel and filed another motion with the IJ, which he styled as a "motion to reconsider" the denial of his initial motion to reopen. He filed it 223 days after his removal in absentia, 192 days after filing his pro se motion to reopen, and 137 days after the IJ ruled on his motion to reopen. In this second motion, Habchy purported to cure the defects in his pro se motion to reopen with materials that would satisfy the Lozada requirements, including a copy of a letter he filed with the Missouri Bar Association describing the events, an affidavit setting forth the terms of the representation, and an affidavit of his former counsel. The IJ denied his motion on three alternative grounds: (1) it was untimely, given the thirty-day limit on filing motions to reconsider, (2) even if it was timely, it alleged no error of fact or law as required by motions to reconsider, and (3) even if the IJ were to construe it as a proper second motion to reopen, which he would have to do in order to consider the new evidentiary materials, it was not clear whether the letter that Habchy sent to the state bar constituted a "complaint" within the meaning of Lozada. Id. at 639.

Habchy appealed this ruling to the Board, and it affirmed on March 7, 2003, solely on the ground that his second motion was untimely. Shortly thereafter, Habchy filed a motion to reopen before the Board, alleging that country conditions in Lebanon had materially changed between 2000 and 2003. The Board denied this motion on the merits, finding that Habchy had failed to make an adequate showing of changed conditions during that time period.

Habchy filed a petition for habeas corpus in the United States District Court for the Eastern District of Missouri on May 11, 2005—the same day that President Bush signed the REAL ID Act of 2005 into law—and the district court transferred the case to this court pursuant to the Act. REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 311, § 106(c) (codified at 8 U.S.C. § 1252 note).

II. DISCUSSION

We review decisions of the Board denying motions to reopen or reconsider for abuse of discretion. Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir.2005); De Jimenez v. Ashcroft, 370 F.3d 783, 790 (8th Cir.2004).¹ This court may find an abuse of discretion where "a decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim." Hernandez-Moran, 408 F.3d at 499 (quotation omitted). "We review constitutional challenges to immigration proceedings de novo." Shoaira v. Ashcroft, 377 F.3d 837, 842 (8th Cir.2004).

Habchy makes three broad claims on this appeal. First, he argues that the Board abused its discretion in failing to reopen his case because his counsel's failure to notify him of the hearing was an "exceptional circumstance" that warranted rescission of his in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C), (e)(1). Habchy also argues that these same facts rendered his removal proceedings fundamentally unfair, and thus deprived him of due process. Finally, he argues that the Board abused its discretion in denying his later motion to reopen on the basis of changed country conditions. We examine each of these claims in turn.

A. Abuse of Discretion in Denying Habchy's Motion to Reconsider

Habchy first argues that the Board erred in upholding the IJ's denial of his motion to reconsider the IJ's refusal to reopen his case on the basis of ineffective assistance of counsel. With regard to removal orders entered in absentia, aliens are allowed to file one motion to reopen removal proceedings within 180 days of the order of removal. 8 C.F.R. § 1003.23(b)(4)(ii). They are also allowed to file one motion to reconsider within thirty days of a final order of removal. 8 C.F.R. § 1003.23(b)(1). Motions to reopen must state new, material facts; motions to reconsider must "specify[] the errors of fact or law in the Immigration Judge's prior decision." 8 C.F.R. § 1003.23(b)(2), (3). Ineffective assistance of counsel can constitute an "exceptional circumstance" warranting rescission of an in absentia removal order. See In re Grijalva-Barrera, 21 I. & N. Dec. 472, 474, 1996 WL 413571 (B.I.A.1996); see also 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(1) (authorizing the rescission of an in absentia removal order when "exceptional circumstances" caused the alien's failure to appear); Asaba v. Ashcroft, 377 F.3d 9, 11 n. 4 (1st Cir.2004) (recognizing that the Board's interpretation of "exceptional circumstances" includes ineffective assistance of counsel); Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.2004) (same). This does not excuse aliens from following proper procedures for proving these exceptional circumstances, however, and the IJ retains the discretion to refuse to reopen the case. 8 C.F.R. § 1003.23(b)(3); Asaba, 377 F.3d at 11.

In Lozada, as noted above, the Board specified the three procedural requirements for motions to reopen on the basis of ineffective assistance of counsel. First, the movant must support his claim with an affidavit alleging facts relevant to the ineffective assistance. Lozada, 19 I. & N. Dec. at 639. Second, the movant must inform the former counsel of the allegation and give her an opportunity to respond. Id. Finally, if the ineffective assistance would amount to a violation of legal or ethical responsibilities, the movant must show whether he has filed a complaint with the "appropriate disciplinary authorities regarding such representation, and if not, why not." Id. The Board considers these further requirements for such motions "necessary if we are to have a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board." Id. We have upheld the Board's application of Lozada to these motions. See Hernandez-Moran, 408 F.3d at 499.

Habchy's initial motion to reopen was timely, and included the new, material facts of his counsel's...