Ghahremani v. Gonzales
| Decision Date | 17 August 2007 |
| Docket Number | No. 04-71072.,No. 04-75361.,04-71072.,04-75361. |
| Citation | 498 F.3d 993 |
| Parties | Parviz GHAHREMANI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. Parviz Ghahremani, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Erin J. Quinn, Aruna Sury, San Francisco, CA, for the petitioner.
Michael Jack Haney, Ryan W. Bounds, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-925-604.
Before: HARRY PREGERSON, BARRY G. SILVERMAN, and RICHARD C. TALLMAN, Circuit Judges.
In this consolidated case, Parviz Ghahremani seeks review of the Board of Immigration Appeals' ("BIA") separate denials of his motions to reconsider (No. 04-71072) and reopen (No. 04-75361) his immigration proceedings. After multiple hearings before an immigration judge ("IJ"), Ghahremani was found removable for having committed an aggravated felony and two crimes of moral turpitude arising out of separate schemes. Following an unsuccessful appeal to the BIA, Ghahremani filed a motion to reconsider, which was denied. He subsequently filed a motion to reopen, alleging that his original counsel provided ineffective assistance, and the BIA denied his motion as untimely. Ghahremani now petitions for appellate review of the BIA's denials. We deny his petition for review as to the motion to reconsider and grant his petition for review as to the motion to reopen.
Ghahremani is a native and citizen of Iran who first entered the United States on October 5, 1990. On August 31, 1995, Ghahremani adjusted his status to lawful permanent resident. His wife and three adult children are also admitted as lawful permanent residents.
On April 2, 1996, Ghahremani pled no contest to and was convicted in California's Orange County Superior Court of "Making a Writing to Support a Fraudulent Claim" and "Making a Fraudulent Statement to Obtain Compensation." Based on these convictions, the former Immigration and Naturalization Service ("INS") commenced deportation proceedings against Ghahremani, charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) & (iii) because his crimes included an aggravated felony and two crimes involving moral turpitude stemming from separate schemes.
Over the next five years, Ghahremani appeared at fourteen hearings before an immigration judge ("IJ"). Throughout the bulk of the hearings, John Channels represented Ghahremani; however, on October 18, 2000, Kazbek Soobzokov entered his appearance on behalf of Ghahremani and continued representation throughout the remainder of his proceedings before the IJ. Prior to Soobzokov replacing Channels, Ghahremani filed applications for asylum, withholding of deportation, and protection under the Convention Against Torture ("CAT"). Subsequently, Soobzokov filed an application for a waiver of inadmissibility under 8 U.S.C. § 1182(c) (repealed 1996) ("§ 212(c) waiver").
At the conclusion of Ghahremani's last hearing on October 16, 2001, the IJ rendered an oral decision finding Ghahremani removable as an aggravated felon and for having committed two independent crimes of moral turpitude; the IJ also denied Ghahremani's application for § 212(c) waiver and his applications for asylum and protection under the Convention Against Torture. The IJ pretermitted Ghahremani's application for a § 212(c) waiver because he did not believe Ghahremani met the continued residency requirement; however, he heard argument on the merits of the application and concluded that he would deny discretionary relief even if Ghahremani were later deemed eligible. In addition, the IJ granted Ghahremani's application for withholding of removal to Iran, and ordered that he be removed to any country but Iran.
After Soobzokov filed Ghahremani's Notice of Appeal, Ghahremani retained new counsel, Nadia Farah. On appeal to the BIA, Ghahremani—through Farah—argued that he was eligible for § 212(c) relief and that the IJ erred in not granting him CAT protection. On July 16, 2003, the BIA affirmed the IJ's decision and dismissed the appeal, finding inter alia that even though the IJ erred in finding that Ghahremani did not satisfy the residency requirement for § 212(c) relief, the IJ's decision to deny relief on discretionary grounds was not erroneous.
Subsequently, Farah filed a motion to reconsider, challenging the finding that Ghahremani had not shown remorse for his crimes. The BIA dismissed this motion on February 5, 2004, and Ghahremani, represented by yet another lawyer, David Diaz, filed a petition for review of the denial in this court on March 8, 2004.
In April 2004, Parmjeet Kaur Randhawa began representing Ghahremani. On May 28, 2004, Randhawa filed a motion to reopen, alleging Soobzokov's ineffective assistance in his efforts to seek the § 212(c) waiver of inadmissibility.1 In a sworn affidavit submitted with his motion to reopen, Ghahremani asserted that although Soobzokov filed an application for § 212(c) relief, the lawyer failed wholly to prepare him for his master calendar hearing. Soobzokov provided no instruction regarding Ghahremani's testimony about his convictions for insurance fraud. Nor did he make clear that Ghahremani and his family could submit affidavits to bolster a finding of good moral character. Instead, Soobzokov spent the entirety of his time with Ghahremani—apparently no more than an hour—preparing Ghahremani to testify in support of his applications for withholding of removal and relief under the Convention Against Torture. Significantly, Ghahremani swore that he did not learn of the deficiencies in Soobzokov's representation until he met with Randhawa—i.e., despite seeking assistance from both Farah and Diaz, neither alerted Ghahremani to Soobzokov's alleged failings.
On September 22, 2004, the BIA denied the motion to reopen as untimely and found that the ninety-day filing deadline should not be equitably tolled because Ghahremani had not demonstrated the requisite due diligence.2 Ghahremani filed a timely petition for review of the BIA's denial of his motion to reopen, and we subsequently consolidated this second appeal with the first appeal of the BIA's denial of Ghahremani's motion to reconsider.
We review the denial of a motion to reconsider or reopen for an abuse of discretion. See Barroso v. Gonzales, 429 F.3d 1195, 1200 (9th Cir.2005). A reviewing court "must uphold the Board's ruling unless it acted arbitrarily, irrationally, or contrary to law." Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004) (internal quotation marks and alteration omitted), amended by 404 F.3d 1105 (9th Cir.2005). A reviewing court determines its jurisdiction de novo. Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1220 (9th Cir.2004).
Although Ghahremani filed a timely appeal from the BIA's denial of his motion to reconsider, he made no effort to show why the denial was an abuse of discretion. In his opening brief, Ghahremani mentions the motion to reconsider only three times and each time only in passing. Indeed, even after the government highlighted this deficiency, Ghahremani failed to argue the issue (or even acknowledge the government's contention).3 Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (citations omitted). Thus, Ghahremani has waived his challenge to the denial of his motion to reconsider, and we deny his petition for review in No. 04-71072. See id. at 1260.
Before addressing Ghahremani's claim that the BIA abused its discretion by denying as untimely his motion to reopen, we must first consider whether we have jurisdiction over his appeal in No. 04-75361. Ghahremani was found removable for (1) having committed two crimes of moral turpitude not arising out of the same scheme and (2) having committed an aggravated felony.4 See 8 U.S.C. § 1227(a)(2)(A)(ii), (iii). Generally, appellate courts do not have jurisdiction to revisit final orders of removal against an alien who is removable by reason of having committed either of these offenses. See id. § 1252(a)(2)(C).5 However, pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, appellate courts now retain jurisdiction to review constitutional claims and questions of law regardless of the underlying offense. See 8 U.S.C. § 1252(a)(2)(D).
In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), we analyzed the breadth of "question of law" and held that Congress intended the term as used in 8 U.S.C. § 1252(a)(2)(D) to include mixed questions of law and fact. Id. at 654 (). Where the relevant facts are undisputed, creating a mixed question of law and fact, jurisdiction would be proper under our reasoning in Ramadan. The question, then, becomes whether Ghahremani has raised a constitutional claim, a question of law, or a mixed question of law and fact sufficient to invoke appellate jurisdiction under 8 U.S.C. § 1252(a)(2)(D).
Until now we have never had occasion to address the proper legal or factual characterization of the due diligence inquiry in the motion to reopen context.6 Ramadan makes clear, however that even if our inquiry would entail reviewing an inherently factual dispute, appellate jurisdiction is preserved under 8 U.S.C. § 1252(a)(2)(D) so long as the relevant facts are undisputed. This case presents such a situation. Central to Ghahremani's argument that he exercised due diligence is the question...
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