Afanwi v. Mukasey

• Citation: 526 F.3d 788
• Decision Date: 19 May 2008
• Docket Number: No. 06-1236.,06-1236.
• Parties: Joseph AFANWI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

526 F.3d 788

Joseph AFANWI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-1236.

United States Court of Appeals, Fourth Circuit.

Argued September 25, 2007.

Decided May 19, 2008.

ARGUED: Lawrence David Rosenberg, Jones Day, Washington, D.C., for Petitioner. Jennifer Jeanette Keeney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Kelly M. Cullen, Jones Day, Dallas, Texas; Julia C. Ambrose, Esther Slater McDonald, Jones Day, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Michelle Gorden Latour, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition for review denied by published opinion. Senior District Judge ELLIS wrote the opinion, in which Chief Judge WILLIAMS and Judge DUNCAN joined.

OPINION

ELLIS, Senior District Judge:

In this immigration and asylum case, petitioner Joseph Afanwi, a citizen of Cameroon, seeks review of three Board of Immigration Appeals (BIA) orders: (i) a November 29, 2005 Order affirming an immigration judge's denial of Afanwi's asylum claim; (ii) a February 13, 2006 Order denying Afanwi's motion to rescind and reissue the November 29 Order; and (iii) a May 12, 2006 Order denying Afanwi's motion to reopen immigration proceedings. For the reasons that follow, the petition is denied.

I.

Afanwi, a citizen of Cameroon, entered the United States legally in July, 2002. As a non-immigrant visitor, Afanwi was authorized to remain in the United States only until January 23, 2003. On January 20, 2003, Afanwi filed, pro se, an application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).¹ Afanwi claimed that he was a member of the Social Democratic Front² and the Southern Cameroons National Council,³ and that his membership and involvement in these groups made him a target of persecution in Cameroon.

Afanwi's application was referred to an immigration judge (IJ), and while the application was pending the Immigration and Naturalization Service (INS)⁴ began removal proceedings by filing a Notice to Appear before the IJ. The INS alleged that Afanwi was removable pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), because he had remained in the United States longer than permitted. Afanwi resisted removal on the same grounds underlying his asylum, withholding of removal, and CAT application. The IJ issued a written opinion finding Afanwi's claims lacking in credibility and consequently denied his asylum, withholding of removal, and CAT claims. Afanwi's timely appeal to the BIA was unsuccessful; the BIA affirmed the IJ's decision and dismissed Afanwi's appeal on November 29, 2005.

The BIA sent a copy of its November 29, 2005 Order to Afanwi's attorney of record at the time,⁵ but because the attorney had relocated to another office and did not check his mail until early January 2006, Afanwi's counsel did not learn of the BIA's Order until after the deadline for filing a petition for judicial review had passed. Afanwi was therefore unable to file a timely petition for review of the BIA's November 29, 2005 Order. Instead, Afanwi filed a motion to rescind and reissue the November 29, 2005 decision and Order to allow him to file a timely petition. In support of this motion, Afanwi argued that the BIA had used an incomplete address when it sent the November 29, 2005 Order to his attorney, which, he said, "could have delayed delivery" thereby preventing him from filing a timely appeal. On February 13, 2006 the BIA denied Afanwi's motion to rescind and reissue.

Afanwi then filed a motion to reopen his application on two grounds: (i) that new evidence relating to his asylum claim justified reopening his application, and (ii) that Afanwi had received ineffective assistance of counsel. This effort also failed. The BIA denied Afanwi's motion to reopen on May 12, 2006, finding (i) that the new evidence proffered by Afanwi failed to remedy the shortcomings of his original application, and (ii) that Afanwi's ineffective assistance claim was beyond the BIA's jurisdiction.

Following the BIA's denial of his motions, Afanwi filed this petition for review with this court on February 27, 2006, seeking review of the BIA's November 29, 2005 Order affirming the denial of his asylum, withholding of removal, and CAT claims. Afanwi "corrected"⁶ this petition on March 8, 2006, to add a request for review of the BIA's February 13, 2006 Order denying his motion to rescind and reissue. Afanwi further "amended" the petition on June 8, 2006, to seek review of the BIA's May 12, 2006 Order denying his motion to reopen.⁷ Respondent filed a motion to dismiss the petition on March 2, 2006, and Afanwi responded in opposition on March 16, arguing that his amended petition rendered respondent's motion moot. Following oral argument, the parties were instructed to file supplemental briefs addressing whether an alien has a Fifth Amendment right to effective assistance of counsel in the filing of a petition for review and, if so, whether the right extends to other aspects of the petition-for-review process. The parties have filed their supplemental briefs, and the appeal is now ripe for disposition.

II.

The Immigration and Nationality Act (INA) vests courts of appeals with jurisdiction to review final orders of removal of an alien. 8 U.S.C. § 1252 (2005). An order of removal — formerly denominated an order of deportation⁸ — is "the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation."⁹ Such an order becomes final upon the earlier of "a determination by the Board of Immigration Appeals affirming such order" or "the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals."¹⁰ The INA further provides that a petition for review "must be filed not later than 30 days after the date of the final order of removal."¹¹ Because Afanwi seeks review of three separate orders — namely, (i) the November 29, 2005 Order affirming the immigration judge's denial of Afanwi's asylum, withholding of removal, and CAT claims, (ii) the February 12, 2006 Order denying Afanwi's motion to rescind and reissue, and (iii) the May 13, 2006 Order denying Afanwi's motion to reopen — we will consider each individually.

Before doing so, however, we must address a threshold jurisdictional matter, namely whether Afanwi has correctly invoked this court's jurisdiction by filing procedurally proper petitions. Respondent argues that Afanwi's corrected and amended petitions are procedurally improper, and that we therefore lack jurisdiction to review the BIA's orders denying Afanwi's motion to rescind and reissue and motion to reopen. According to respondent, the Supreme Court in Stone v. I.N.S., 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), construed the INA to require separate petitions for (1) review of the original order of removal and (2) review of any subsequent motions for reconsideration. In other words, respondent claims that Stone required Afanwi to file a separate petition for review for each of the three orders in issue on this appeal.

This argument misreads Stone, for that decision, closely read, does not require that a petitioner must, in all circumstances, file a separate petition for review for each order. Instead, Stone stands for no more than the unremarkable proposition that a petitioner who files a motion for reconsideration of an order cannot wait for disposition of that motion before filing a petition for review of the order for which reconsideration is sought. In other words, Stone avoids delaying judicial review of an order that is pending reconsideration by requiring timely filing of a petition for review of that order notwithstanding that a motion for reconsideration remains unresolved. Stone further contemplates the filing of a separate petition once the motion for reconsideration is resolved and the subsequent consolidation of these petitions by the court of appeals. In the words of Stone, "deportation orders are to be reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to reopen or reconsider." 514 U.S. at 395, 115 S.Ct. 1537.

Correctly read, therefore, Stone is no obstacle to our jurisdiction to consider Afanwi's petition. He was not required to file separate petitions for review of the BIA's February 13, 2006 Order denying his motion to rescind and reissue and the BIA's May 12, 2006 Order denying his motion to reopen. Petitioner's March 8, 2006 corrected petition and his June 8, 2006 amended petition suffice to bring these matters before us for review.¹² We therefore turn to a consideration of each of the BIA's decisions in turn.

III.

Afanwi first seeks review of the BIA's November 29, 2005 Order affirming the immigration judge's denial of his (1) asylum, (2) request for withholding of removal, and (3) CAT application. Afanwi concedes, as he must, that this petition is untimely, for the INA required him to file his petition not later than 30 days after the BIA's Order, that is, not later than December 29, 2005.¹³ It is undisputed that the untimeliness of Afanwi's petition with respect to the November 29 Order is attributable to his attorney's failure to check his mailbox following his transfer to another office. As a result of this oversight, Afanwi and his counsel did not learn of the November 29, 2005 Order...