Dakane v. U.S. Atty. Gen.

• Decision Date: 25 May 2004
• Docket Number: No. 03-13870.,03-13870.
• Citation: 399 F.3d 1269
• Parties: Abdulkadir Haji DAKANE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

399 F.3d 1269

Abdulkadir Haji DAKANE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 03-13870.

United States Court of Appeals, Eleventh Circuit.

May 25, 2004.

Corrected February 8, 2005.

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Kwao Amegashie, Minneapolis, MN, for Dakane.

Aviva Poczter, Emily Anne Radford, U.S. Dept. of Justice, Ernesto H. Molina, Jr., Regina Byrd, Dept. of Justice, Civ. Div., OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER^*, District Judge.

PER CURIAM:

Abdulkadir Dakane petitions this Court for review of the denial of his motion to reopen removal proceedings and reconsider the final order of removal against him based on his claim of ineffective assistance of counsel. We affirm.

Dakane attempted to enter the United States via Miami International Airport with the use of a Kenyan passport. Upon questioning by an immigration official, Dakane stated that he was actually a citizen and national of Somalia; that the Kenyan passport was false because it had not been legally issued to him but was purchased in Mogadishu, Somalia; and that he was seeking asylum because, as a member of a minority clan in Somalia, he feared persecution.

In removal proceedings, the immigration judge found that although Dakane had a valid passport, he was not in possession of a valid visa. Furthermore, the judge found that his testimony with regard to the persecution allegedly suffered in Somalia and as to how he obtained the Kenyan passport in Mogadishu was not credible. The judge rejected Dakane's testimony to support his claim that he is a Somali national as well as the unauthenticated document he submitted as a Somali birth certificate. The judge accepted instead the INS's argument that even if Dakane was originally from Somalia, he had "firmly resettled" in Kenya pursuant to 8 C.F.R. § 208.15,¹ as he possessed a valid Kenyan citizen's passport, which had been authenticated by the Kenyan Embassy and deemed not to have been altered by the INS's Forensic Document Laboratory. Having considered all of the evidence presented by both sides including the above, the immigration judge found Dakane to be a national of Kenya and thus, ineligible for asylum.

Accordingly, the immigration judge held that Dakane: (1) was removeable pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA") because he was not in possession of a valid visa; (2) failed to establish that he is a refugee within the meaning of section 101(a)(42)(A) of the INA and thus was ineligible for asylum and withholding of removal pursuant to section 241(b)(3)(A) of the INA; and (3) was ineligible for withholding of removal under the Convention Against Torture ("CAT") pursuant to § 208.16 of the Code of Federal Regulations ("CFR").

Dakane filed a notice of appeal with the BIA, contesting the findings and conclusions of the immigration judge. On the day Dakane's BIA brief was due, he moved through counsel for a 60-day extension to file, claiming that counsel was having health problems and had not yet received a complete record of the proceedings. The BIA granted the extension. Dakane moved for another extension, which was also granted; however, Dakane's attorney never filed the brief. Dakane, represented by new counsel, then submitted a request for leave to file his brief out of time and a request for a copy of the transcript of his immigration hearing, claiming ineffective assistance of counsel by his previous attorney. In support of his request, Dakane attached a copy of his Florida Bar Complaint Form against his previous attorney with supporting documentation including a sworn affidavit indicating that he had paid his attorney to represent him, that she failed to communicate with him regarding the status of his case, and that she represented to him that she was going to file the appeals brief before the BIA but never did so. The BIA denied the request for leave to file a late brief noting that Dakane had been granted two previous extensions.

On appeal, the BIA affirmed the findings and conclusions of the immigration judge and ordered Dakane removed. Dakane then filed a motion to reconsider with the BIA and renewed his request for leave to file a brief in support of his appeal, which the BIA construed as a motion to reopen removal proceedings. The BIA denied the motion finding that although he properly asserted ineffective assistance of counsel under "most" of the requirements of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), he failed to establish how he was prejudiced by his former attorney's failure to file a brief in support of his appeal.² Dakane appeals that decision here.

DISCUSSION

The sole issue before us in this appeal is whether Dakane was required to demonstrate in his motion to reopen that his counsel's ineffective assistance prejudiced his removal proceedings.³

Congress has provided by statute under section 1229a(c)(6) of the INA that an alien has the option to file one motion to reopen a final administrative order of removal within 90 days of that order.⁴ One of the grounds an alien may claim in a motion to reopen is ineffective assistance of counsel. See, e.g., Gbaya v. U.S. Att'y Gen., 342 F.3d 1219, 1221 (11th Cir.2003). Section 1362 of the INA provides that aliens have the privilege of having the presence of counsel in their removal hearings⁵ stating that:

[i]n any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362. It is well established in this Circuit that an alien in civil deportation proceedings, while not entitled to a Sixth Amendment right to counsel, has the constitutional right under the Fifth Amendment Due Process Clause right to a fundamentally fair hearing to effective assistance of counsel where counsel has been obtained. Gbaya, 342 F.3d at 1221.⁶ In order "to establish the ineffective assistance of counsel in the context of a deportation hearing, an alien must establish that his or her counsel's performance was deficient to the point that it impinged upon the fundamental fairness of the hearing such that the alien was unable to reasonably present his or her case." Id. (quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999) (internal quotes omitted)). See also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824 (9th Cir.2003).

In Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), the BIA addressed the claim of ineffective counsel in the same context as that presented here:

A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires (1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.

Id., 19 I & N Dec. at 639.

This Court has previously determined that the BIA may require aliens to satisfy the three part Lozada test. Gbaya, 342 F.3d at 1223. However, it is not disputed by the parties that Dakane substantially complied with the procedural requirements of Lozada. The issue here is whether we should agree with the BIA's further requirement in Lozada⁷ that an alien such as Dakane must also prove that his counsel's deficient representation resulted in prejudice to him.

We agree with the Ninth Circuit that, in addition to substantial, if not exact, compliance with the procedural requirements of Lozada, a petitioner claiming ineffective assistance of counsel in a motion for reconsideration must also show prejudice. Rojas-Garcia, 339 F.3d at 826; see also Mejia Rodriguez, 178 F.3d at 1146 (denying habeas petitioner's ineffective assistance of counsel claim, which resulted in ineligibility for suspension of deportation, because alien could not demonstrate prejudice such that were it not for his counsel's deficient performance, he would have received the extraordinary relief). Prejudice exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney's error, the outcome of the proceedings would have been different. See Mejia Rodriguez, 178 F.3d at 1148; see also Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.1994) (holding that alien must show that his attorney's failure to file for § 212(c) relief caused him actual prejudice by making a prima facie showing that he would have been eligible for the relief); Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir.1994) ("[P]roving prejudice requires the Petitioner to make a prima facie showing that had the application been filed, he would have been entitled to relief from deportation...."). Where counsel fails to file any appeals brief in the context of an immigration proceeding, effectively depriving an alien of an appellate proceeding entirely, there is a rebuttable presumption of prejudice. Rojas-Garcia, 339 F.3d at 826 (citing Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.2000)).

In this case, we conclude that the BIA did not err in finding that any presumption of prejudice in this case due to the failure of Dakane's counsel to file a brief was rebuttable. As noted by the BIA, Dakane failed to demonstrate or even address in his motion to reopen how his attorney's...