Alsamhouri v. Gonzales
| Decision Date | 19 April 2007 |
| Docket Number | No. 05-2800.,05-2800. |
| Citation | 484 F.3d 117 |
| Parties | Jameleddin ALSAMHOURI, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Jose A. Espinosa, Peter J. Rubin, Walter Dellinger, and O'Melveny & Myers, LLP on brief for petitioner.
Thomas L. Holzman, Special Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Robbin K. Blaya, Attorney, Office of Immigration Litigation, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Peter D. Keisler, Assistant Attorney General, Civil Division, on brief for respondent.
Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.
Petitioner Jameleddin Alsamhouri is a Jordanian citizen. He and, derivatively, his wife and three children petition for review of a final order of removal of the Board of Immigration Appeals (BIA). The focus of the petition is on a discretionary order dated July 7, 2004 from an Immigration Judge (IJ) denying Alsamhouri's request for a continuance to give Alsamhouri additional time to file an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). As a result, the IJ deemed the application to have been abandoned and ordered Alsamhouri removed.
The government initially challenged, but now concedes, our jurisdiction to review the IJ's denial of a continuance. Nevertheless, given the IJ's amply supported findings that Alsamhouri understood the filing deadline and yet failed to diligently proceed with the application, the denial was not an abuse of discretion. Thus, we affirm the BIA and deny the petition.
Alsamhouri entered this country on April 13, 2001 on a tourist visa, and his wife and family were admitted on tourist visas on June 16, 2001. They overstayed. Alsamhouri received a notice to appear dated March 12, 2003, on a charge of removability. On July 2, 2003, he appeared before an IJ and was given a continuance, at first six months and eventually nine months, in order for him to obtain representation and assert his claims.
At a master calendar hearing on April 19, 2004, Alsamhouri appeared with counsel, Fred Tannous, and conceded removability. Through counsel, Alsamhouri sought a three-month continuance to prepare an application for asylum, withholding of removal, and CAT relief. The IJ granted a continuance until July 7, 2004. As to a potential asylum application, Alsamhouri had already missed the deadline to apply by the time he was placed in removal proceedings in March 2003.1 The IJ informed Alsamhouri that an application for asylum at that point would normally be untimely and that, accordingly, Alsamhouri would need to file with his application a memorandum and affidavits to show why he met one of the exceptions permitting late filings.
On May 28, 2004, Tannous filed a motion to withdraw as Alsamhouri's counsel, declaring in an affidavit that Alsamhouri wanted to terminate the representation. Attached to the motion was a copy of a letter Tannous had given to Alsamhouri on May 20, confirming that Alsamhouri had requested the termination of the representation and emphasizing the importance of meeting the July 7 filing deadline. The letter stated:
Indeed, if you wish to pursue this matter, I would strongly urge you to do so as soon as possible. There are time limitations governing actions of this nature. Accordingly, you have a July 7, 2004 date that requires you to file your I-589 Application for Political Asylum together with a Memorandum addressing the one (1) year bar issue. If you fail to file the proper documents within the specified time period, you will forever be barred from doing so.
The letter bore Alsamhouri's signature and initials, and it was witnessed by another attorney in Tannous's office. This letter was dated about six weeks before the July 7 filing deadline. The IJ did not act on Tannous's motion to withdraw before the July 7 hearing.
The IJ opened the July 7, 2004 hearing by saying that he was prepared to accept applications for relief. Alsamhouri appeared but filed no application and said he had none. Alsamhouri was accompanied by both original counsel, Tannous, who had not yet been given leave to withdraw, and new counsel, Jose Espinosa, who stated that Alsamhouri had come to see him only a few days earlier. Alsamhouri asked for another continuance on the basis that he had just retained new counsel.
The IJ took testimony on the requested continuance. Original counsel Tannous informed the IJ that after the last hearing on April 19, he had instructed his clients to prepare a summary of the evidence supporting their claims of persecution, torture, and fear of returning to Jordan. A few weeks later, on May 20, Alsamhouri came to Tannous's office, requested the return of his file, and said he no longer needed Tannous's services. Alsamhouri told Tannous that his brother-in-law had another attorney, implying that that attorney was now representing him. Tannous then prepared the letter described above, emphasizing the July 7 deadline, handed the letter to Alsamhouri, and explained the contents of the letter to him in Arabic. Tannous also stated to the IJ that he had later called Alsamhouri to inform him that the court had not yet ruled on the motion to withdraw, again explaining the importance of meeting the filing deadline and again being told that Alsamhouri had another attorney.
The IJ also questioned Alsamhouri under oath. Alsamhouri said Tannous was the one who wanted him to get a different attorney. He also testified (1) that he never understood there was a deadline for filing his application and (2) that he never received the May 20 letter from Tannous advising him of the July 7 deadline and the consequences of not meeting that deadline. The IJ then showed Alsamhouri the signed letter. When the IJ pointed out that Alsamhouri's signature and initials were on the letter, Alsamhouri switched his testimony. He admitted that he had received the May 20 letter and that he had shown it to Espinosa, his new counsel, but he claimed not to have understood it because Tannous's Arabic was faulty.
Next, the IJ questioned Espinosa, who indicated that he had only met with Alsamhouri for about twenty minutes, a few days before the hearing. At that time, Espinosa expressed his willingness to represent Alsamhouri, but he told Alsamhouri that it would not be possible for him to prepare the necessary filings by the July 7 deadline.
Finally, the IJ questioned Alsamhouri's wife. She said that she understood they were required to file their asylum application by July 7, but they did not do so "because we changed lawyers." When asked about Tannous's explanation to them that failure to file the application by July 7 would cause it to be deemed abandoned, she said they did not understand Tannous because "he speaks more in English."
Based on this testimony, the IJ found Alsamhouri not credible, saying he had "carefully observed his demeanor and found him to be evasive, non-responsive, vague and a wholly incredible witness." The IJ made a factual finding that Alsamhouri "was well aware that he had a deadline for filing this asylum application . . . but has disregarded that deadline." The IJ also found that Tannous "did make efforts to comply with this Court's order, but his clients . . . simply ignored his efforts." The IJ added that he found "no compelling reason to allow the respondents further time to file their asylum applications." As a result, the IJ held that Alsamhouri's "application for asylum, withholding of removal, and relief under the Convention Against Torture [were] deemed to be withdrawn and abandoned with prejudice."
After finding Alsamhouri's application to have been abandoned, the IJ initially denied Tannous's motion to withdraw. When Tannous expressed discomfort with continuing to represent Alsamhouri and the government indicated it had no objection to the withdrawal, the IJ reconsidered and allowed the motion. The IJ then allowed Espinosa to enter his appearance and gave him the opportunity to discuss other forms of relief with his clients, including voluntary departure. After consultation with counsel, Alsamhouri and his wife declined to request voluntary departure; the IJ ordered removal to Jordan.
Alsamhouri timely appealed to the BIA. On November 3, 2005, the BIA affirmed the order of removal, without opinion. See 8 C.F.R. § 1003.1(e)(4). Alsamhouri then brought this petition for review, claiming that the IJ had abused his discretion and violated Alsamhouri's constitutional due process rights in denying a further continuance and deeming Alsamhouri's applications to have been abandoned.
The question arises of whether we have jurisdiction over the non-constitutional claim of abuse of discretion, in light of 8 U.S.C. § 1252(a)(2)(B)(ii). That section provides:
[N]o court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [relating to asylum].
This provision is one of several different statutory bars to judicial review of particular issues in immigration cases. See, e.g., 8 U.S.C. § 1252(a)(2)(B)(i); Onikoyi v. Gonzales, 454 F.3d 1, 3-4 (1st Cir.2006) (discussing section 1252(a)(2)(B)(i)).
The government now concedes, contrary to its initial position in this case,2 that section 1252(a)(2)(B)(ii) poses no jurisdictional bar to judicial review of a decision by an IJ, pursuant to 8 C.F.R. § 1003.29,3 to grant or deny a continuance. This is the view of most courts. See Zafar v. Attorney General, 461 F.3d 1357, 1360 (11th Cir.2006); Khan v....
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...judge abused his discretion by denying a motion for a continuance. 526 F.3d at 1246-47. The Ninth Circuit adopted the reasoning of Alsamhouri v. Gonzales, a First Circuit case the same issue. 484 F.3d 117, 122 (1st Cir.2007). In Alsamhouri, the court examined the statutory provision giving ......
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