Dokic v. I.N.S.

• Decision Date: 15 July 1993
• Docket Number: No. 92-3592,92-3592
• Citation: 999 F.2d 539,1993 WL 265166
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Aga DOKIC a/k/a Aga Ljucovic, and Doko Dokic, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 539

999 F.2d 539

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Aga DOKIC a/k/a Aga Ljucovic, and Doko Dokic, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-3592.

United States Court of Appeals, Sixth Circuit.

July 15, 1993.

Before KEITH and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

PER CURIAM.

Petitioners appeal the decision of the Board of Immigration Appeals (the Board) denying their motion to reopen deportation proceedings. Upon review, we find no abuse of discretion by the Board in denying the requested relief, and therefore AFFIRM.

I

Petitioners, Doko and Aga Dokic, husband and wife, are natives and citizens of former Yugoslavia. Both are ethnic Albanians ¹. On March 6, 1985, the INS issued an Order to Show Cause (OSC), charging them with deportability as aliens who had entered the United States without inspection, in violation of Section 241(a)(2) of the Immigration and Nationality Act (Act).

Petitioners jointly appeared with counsel before an Immigration Judge (IJ) in Detroit, Michigan. After conceding the factual allegations in the OSC and their deportability, petitioners indicated that they would be filing applications for asylum. The hearing was adjourned for the receipt of the asylum applications.

On January 13, 1986, the joint hearing resumed. Petitioners testified that Doko obtained a Yugoslavian passport in September of 1983. From that time until December of 1984, he traveled to Italy three times, residing there for months at a time. On at least one occasion, Aga joined him in Italy. While in Italy, they investigated the possibility of obtaining visas to enter the United States and learned that it could take approximately five years. Not wanting to wait that long, they returned to Yugoslavia, married, and went to Mexico with Mexican visas in December, 1984. From Mexico City, petitioners illegally entered the United States. Petitioners have relatives who still reside in Yugoslavia.

Petitioners' claim for asylum revolves around their being ethnic Albanians and having been away for some time from Yugoslavia. ² Specifically, petitioners claim that Albanians are viewed suspiciously, that they refused to join the Communist Party, and that Doko helped recruit for the National Albanian Liberation Organization and spoke against Yugoslavia. In his testimony, however, Doko stated that he was questioned on a few occasions about his foreign travel and released.

In his decision denying asylum and withholding of deportation, the IJ noted that Doko had served honorably in the Yugoslavian Army, that he had left Yugoslavia and returned three times with a passport, that he had failed to provide evidence in support of his claim, and that he had been questioned by authorities only about his travel abroad. Petitioners' previous counsel filed a notice of appeal with the Board, but never filed a brief in support of the appeal.

Notwithstanding the fact that no brief was filed, the Board relied on the notice of appeal, which did set forth the legal grounds for the appeal, in rendering its decision. The Board reached the merits of each ground and rejected them, thereby affirming the IJ's decision.

Petitioners thereafter retained new counsel who filed an appeal with this court to review the final order of deportation issued by the Board. Because petitioners had not exhausted their administrative remedies by filing a motion to reopen with the Board, we denied the petition and affirmed the decision of the Board. Dokic v. INS, 899 F.2d 530 (6th Cir.1990). We stayed the order of deportation for thirty days to allow petitioners time to file a motion to reopen and stayed deportation pending a ruling on the motion to reopen, if filed. Id. at 532-33. We noted that petitioners were appealing the decision of the Board on two grounds, inadequate administrative record and ineffective assistance of counsel, neither of which had been raised before the Board. Petitioners therefore had not exhausted their administrative remedies, and we refused to interfere with the Board's discretionary authority by making initial determinations as to whether the deportation proceedings should be reopened. Id. at 531-32.

Petitioners filed a motion to reopen with the Board on April 26, 1990. On March 31, 1992, the Board denied petitioners' motion to reopen. The Board found the administrative record sufficiently complete for an adequate review of the case and that a remand was not necessary due to any claimed inadequacies in the record. Additionally, the Board found that petitioners had not shown that their prior counsel prejudiced their asylum request by his ineffective assistance. The Board held that the 1982 and 1985 Amnesty International Reports, presented by petitioners in their motion to reopen, did not relate to petitioners or to individuals in similar circumstances. Petitioners' prior counsel therefore did not provide ineffective assistance by failing to present those reports. The Board also noted that the reports were not new, material evidence that was previously unavailable. The Board did, however, consider the Amnesty International Reports dated subsequent to petitioners' deportation hearing, but found that none of the reports related to petitioners or individuals in similar circumstances. The Board found that the failure of petitioners' prior counsel to file a brief was not ineffective assistance because they could not show that the failure to file a brief prejudiced them. The Board determined that no brief could redeem the petitioners' failure to establish a well-founded fear of persecution. Petitioners timely appealed the Board's denial of the motion to reopen to this court. This court has jurisdiction pursuant to 8 U.S.C. § 1105a(a) (Supp.IV 1992).

II

At a minimum, there are three independent grounds upon which the Board may deny a motion to reopen deportation proceedings: (1) the Board may hold that the movant has failed to establish a prima facie case for the underlying substantive relief; (2) the Board may conclude that the movant has failed to introduce previously unavailable and material evidence; and (3) if the underlying substantive relief is discretionary the Board may decline to consider the two above-mentioned threshold requirements and, instead, determine that the movant would not be entitled to the requested discretionary grant of relief. INS v. Abudu, 485 U.S. 94, 104-05 (1988).

Further, we review the Board's decision not to reopen under the abuse of discretion standard. Abudu, 485 U.S. at 105. In determining whether the Board abused its discretion, we must decide whether the denial of petitioners' motion to reopen deportation proceedings "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982) (per curiam).

III

Petitioners first contend that due to the "inadequate" administrative record, their case should be remanded to the Board and/or the IJ or the decision of the Board should be reversed.

As the Board noted, the only significant portions missing from the record are parts of the direct examinations of each respondent. Most of the cross-examinations are well transcribed, the typed asylum applications are of record, and the oral decision of the IJ, which was reduced to writing, adequately summarizes the testimony of the petitioners for the purposes of review. The Board therefore found that the record was sufficient for review and that a remand for a new hearing was not necessary. We conclude that, in so finding, the Board did not abuse its discretion.

IV

Petitioners next contend they were denied due process of law because they received ineffective assistance of counsel. ³ This claimed ineffective assistance of counsel allegedly arose because, although counsel filed a notice of appeal from the IJ's deportation order, petitioners' prior counsel did not file a brief in support of the appeal. Petitioners further alleged that prior counsel's failure to include several Amnesty International reports regarding the tense political situation in Yugoslavia also constituted ineffective assistance of counsel.

Aliens in deportation hearings are protected by the Fifth Amendment's guarantee of due process, and are entitled to a full and fair hearing. Baires v. INS, 856 F.2d 89 (9th Cir.1988). To result in "fundamental unfairness," any alleged defect in the proceedings "must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process." Ramirez v. INS, 550 F.2d 560, 563 (9th Cir.1977) (quoting Bilokumsky v. Todd, 263 U.S. 149, 157 (1923)). The burden is on the alien to demonstrate that he has been prejudiced or denied fundamental fairness by the procedural defect, i.e., ineffective assistance of counsel, in his deportation proceeding before he will be found to have suffered a denial of due process. Aguilera-Enriguez v. INS, 516 F.2d 565, 569 (6th Cir.1975), cert. denied, 423 U.S. 1050 (1976).

In Matter of Lozada, Interim Decision No. 3059 (BIA1988), aff'd, Lozada v. INS, 857 F.2d 10 (1st Cir.1988), the Board rejected the contention that the failure to file a brief constitutes per se incompetence that violates an alien's due process rights. The Board in Lozada also set out procedures that petitioners would be expected to follow in any motion they might bring before the Board alleging incompetence of prior counsel. Such a motion should be accompanied by an affidavit setting out the agreement with former counsel as to representation, the actions to be taken on appeal, and what counsel did or did not...