Nehad v. Mukasey

• Decision Date: 31 July 2008
• Docket Number: No. 07-70606.,07-70606.
• Citation: 535 F.3d 962
• Parties: Fridoon Zalbeg Rawshan NEHAD, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

535 F.3d 962

Fridoon Zalbeg Rawshan NEHAD, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-70606.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2008.

Filed July 31, 2008.

Christy A. Chouteau, Aguirre Law Group, San Diego, CA, for the petitioner.

Jacob A. Bashyrov, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A55-398-900.

Before: W. FLETCHER and RONALD M. GOULD, Circuit Judges, and LOUIS H. POLLAK,^* Senior District Judge.

POLLAK, District Judge:

Fridoon Zalbeg Rawshan Nehad ("Rawshan") petitions for review of an order denying his motion to reopen removal proceedings on the basis of ineffective assistance of his counsel, Pieter Speyer. This is an atypical ineffective-assistance claim inasmuch as counsel's alleged ineffectiveness derived not from the giving of incompetent advice, but from pressuring his client into accepting voluntary departure under threat of counsel's withdrawal. For the reasons that follow, we will grant the petition for review and remand with instructions to the Board of Immigration Appeals ("BIA") to reopen petitioner's case.

I. Facts and procedural history

Rawshan is a citizen and native of Afghanistan and a lawful permanent resident of the United States. He fled Afghanistan in 1989 at age 16 to avoid military service and settled in Germany. In 2003, he immigrated to the United States as a lawful permanent resident to live with other members of his family. He has been diagnosed with schizophrenia and bipolar disorder, and, when not properly medicated, he experiences hallucinogenic episodes.

In June 2005, the government served Rawshan with a notice to appear alleging that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence. Rawshan retained attorney Pieter Speyer to represent him in removal proceedings. In July 2005, the government lodged an additional charge that Rawshan was removable under 8 U.S.C. § 1227(a)(2)(E)(ii) as an alien convicted of violating a protective order. In support of these charges, the government submitted California court documents reflecting that, in February 2005, Rawshan pleaded guilty to one count of battery in violation of California Penal Code § 242 and one count of violating a protective order in violation of California Penal Code § 273.6(a). The documents of conviction do not detail the circumstances of these charges. According to an affidavit submitted by Rawshan's sister, Benazeer Roshan, she and other family members obtained the protective order in response to one of Rawshan's psychotic episodes. They were, at the time, unaware of Rawshan's mental illnesses. Roshan further attests that had they realized his episode was the product of mental illness, they would not have requested the order. How Rawshan violated the protective order is not reflected in the record.

At a master calendar hearing in December 2005, the Immigration Judge ("IJ") issued a preliminary ruling sustaining the § 1227(a)(2)(E)(ii) charge (for violating a protective order) and rejecting the § 1227(a)(2)(E)(i) charge (for a crime of domestic violence). The record does not contain a transcript of the hearing or anything else detailing the reasons underlying the IJ's decision.

Following these preliminary rulings, the December 2005 hearing was continued to allow Rawshan to prepare an application for asylum and similar relief. The next hearing was set for February 14, 2006, and Rawshan was expected to file any applications for relief from removal at that time.

On February 14, 2006, shortly before Rawshan was scheduled to appear before the IJ, he met with Speyer to finalize his asylum application. According to Rawshan's account of the meeting, Speyer announced that he would not be able to continue representing Rawshan beyond that day's hearing because of a personal issue¹ and because Rawshan's case was complicated. In addition, Rawshan attests that Speyer suggested that his claim for asylum was weak. Approximately two hours before the hearing, Speyer proposed that, in lieu of filing an asylum application, Rawshan accept voluntary departure, which, Speyer told Rawshan, would preserve Rawshan's rights to return to the United States in the future. At the hearing that day, Rawshan agreed to voluntary departure and was given 60 days to leave the United States.

Days before his deadline for leaving the United States, Rawshan, through new counsel, filed a motion to reopen based on Speyer's ineffective assistance. Rawshan's primary argument was that Speyer acted improperly by presenting him with a voluntary-departure proposal and a threat to withdraw as counsel just two hours before a scheduled hearing. Rawshan further argued that he was prejudiced by this impropriety because, in agreeing to voluntary departure, he waived a meritorious appeal on the issue of removability and forewent the filing of a meritorious application for asylum and related relief. In support of his motion, Rawshan submitted an affidavit in which he testified to Speyer's conduct. He also submitted a complaint against Speyer filed with the California Bar Association by his sister, Benazeer Roshan, and an affidavit from her as well, both of which enlarged upon the testimony in Rawshan's affidavit.² In support of his motion to reopen, Rawshan included Speyer's brief response to the bar complaint, in which Speyer stated that he "perceived a conflict between Ms. Roshan's plan for resolving this case and her brother, Fridoon Rawshan's, own wishes," and that seeking voluntary departure appeared to reconcile "everyone's wishes."

The IJ denied Rawshan's motion, ruling that the evidence submitted did not establish that Speyer sought to withdraw from the case for personal reasons. The IJ observed that Speyer had not moved to withdraw, and that Speyer had completed Rawshan's asylum application, which, according to the IJ, suggested that Speyer was prepared to file an asylum request had Rawshan wanted him to do so. The IJ essentially credited Speyer's explanation that there was some conflict between Rawshan and his sister, and inferred that Speyer followed his client's wishes by requesting voluntary departure. The IJ further found that Rawshan's conduct during the February 14, 2006, hearing suggested that Rawshan fully understood the consequences of accepting voluntary departure.³

Rawshan appealed to the BIA, and the BIA affirmed, adopting the IJ's view and adding its own. In his appeal to the BIA, Rawshan also requested reopening on the ground of changed country conditions and reconsideration of his removability. The BIA concluded that it lacked jurisdiction over both supplemental requests.

Rawshan petitions this court for review of the BIA's affirmance of the IJ's denial of his motion to reopen, as well as the BIA's refusal to consider his supplemental requests for reconsideration and for reopening on the basis of changed country conditions.

II. Jurisdiction and standard of review

We have jurisdiction under 8 U.S.C. § 1252(a).

Where, as here, the BIA expressly adopts the reasoning of the IJ and adds some of its own reasoning, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). "We review the denial of a motion to reopen for abuse of discretion." Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Any findings of fact made in the course of the decision are reviewed for substantial evidence. Jie Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir.2004) (as amended). The BIA's decision not to consider a motion on jurisdictional grounds is reviewed de novo. Lin v. Gonzales, 473 F.3d 979, 981 (9th Cir.2007).

III. Discussion

We begin with the denial of Rawshan's motion to reopen on account of ineffective assistance of counsel. Litigants in removal proceedings have no Sixth Amendment right to counsel; their counsel can, however, be so ineffective as to deprive them of their Fifth Amendment right to due process of law. Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir.2008). The Immigration and Nationality Act gives litigants in removal proceedings a right to retain private counsel. 8 U.S.C. § 1362. "[I]f an individual chooses to retain counsel, his or her due process right `includes a right to competent representation.'" Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir.2008) (quoting Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006) (emphasis in original)). Representation by competent counsel is particularly important in removal proceedings because "[t]he proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate." Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). Thus, we have recognized that litigants in removal proceedings rely heavily on their attorney's advice. See Hernandez, 524 F.3d at 1018.

"Ineffective assistance of counsel amounts to a violation of due process if `the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.'" Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (citations omitted). To make out an ineffective assistance claim, an immigrant must show (1) that counsel's performance was deficient, and (2) that counsel's deficiency caused prejudice. Id. at 793-94. Prejudice only results when counsel's performance is "so inadequate that it may have affected the outcome of the proceedings." Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999).

A. Whether Speyer's performance was deficient

The focus of Rawshan's petition is not that Speyer's advice recommending voluntary departure was per se incompetent, but that Speyer violated his duties of loyalty and competence by presenting this recommendation under improperly coercive circumstances. In particular, Rawshan argues that it was improper for Speyer to, in...