Hamid v. Ashcroft

• Decision Date: 15 July 2003
• Docket Number: No. 02-3166.,02-3166.
• Citation: 336 F.3d 465
• Parties: Faisal AL HAMID, Petitioner-Appellant, v. John ASHCROFT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

336 F.3d 465

Faisal AL HAMID, Petitioner-Appellant, v. John ASHCROFT, Respondent-Appellee.

No. 02-3166.

United States Court of Appeals, Sixth Circuit.

Argued: June 18, 2003.

Decided and Filed: July 15, 2003.

Abraham Kay, (argued and briefed), Law Office of Abraham Kay, Cleveland, OH, for Petitioner.

Susan K. Houser (argued and briefed), Jeffrey J. Bernstein (briefed), United States Department of Justice, Washington, D.C., for Respondent.

Before BOGGS and GILMAN, Circuit Judges; MARBLEY, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Faisal al Hamid entered the United States on a six-month visitor's visa in 1992 and overstayed his visa. In 1998, the United States Immigration and Naturalization Service (INS) served him with a Notice to Appear, alleging that he was subject to being removed on the basis of the overstay.

Hamid was represented by two different attorneys during the removal proceedings in the immigration court, which lasted over two years due to numerous continuances that were granted at his request. In 2001, the immigration court finally ordered that Hamid be removed from the United States. Hamid appealed the order to the Board of Immigration Appeals (BIA). With new counsel on appeal to the BIA, Hamid argued that his two prior counsel were ineffective, depriving him of his due process rights. The BIA affirmed the immigration court's order. For the reasons set forth below, we AFFIRM the judgment of the BIA.

I. BACKGROUND

Hamid, a Jordanian citizen, entered the United States on a visitor's visa from Jordan in May of 1992. His visa expired in November of 1992. In March of 1997, Hamid, who had not left the United States since entering in 1992, married a United States citizen. This was Hamid's second marriage to a United States citizen, the first having ended in divorce earlier in 1997. In June of 1998, the INS served Hamid with a Notice to Appear, alleging that Hamid was subject to being removed because he had overstayed his visa.

A removal hearing was held in the immigration court in February of 1999. Hamid was represented at the hearing by Elizabeth Ryser, who requested a continuance to allow for the processing of Hamid's second visa application, which was pending with the INS. The court granted a continuance until October 15, 1999.

On October 15, 1999, Ryser again sought a continuance on the ground that the INS had yet to act on Hamid's visa application. The court granted a further continuance until October 13, 2000. Hamid appeared without counsel at the October 13, 2000 hearing because Ryser had in the interim withdrawn from the case. At that hearing, counsel for the INS informed the court that Hamid's second visa application had been denied on May 31, 2000. The court then granted Hamid a continuance until November 17, 2000 to obtain new counsel and allow adequate time to prepare for the hearing.

On November 17, 2000, Hamid appeared with new counsel, Patricia Windham. Windham sought still another continuance so that Hamid could file a new visa application. The court denied the motion for a continuance on that ground, but it granted a continuance until July 13, 2001 so that Windham would have time to prepare an application for withholding of removal.

Windham appeared with Hamid on July 13, 2001 and advised the court that Hamid had not filed an application for withholding of removal, but that Hamid's brother, a United States citizen, had filed a third visa application on Hamid's behalf in April of 2001. The court ruled that the application for withholding of removal had been abandoned, but that it would grant a continuance until August 10, 2001 for Windham to prepare to discuss the latest visa application and to prepare a petition, if Hamid wished, for a voluntary departure.

Hamid did not seek a voluntary departure at the August 10, 2001 hearing, but instead filed a motion with the court to reconsider its ruling that the application for withholding of removal had been abandoned. Specifically, Hamid contended that he did not timely file an application for withholding because he had recently converted from Islam to Christianity and was concerned about suffering reprisals in Jordan based on the public disclosure of his new faith. The court denied the motion on the grounds that it was untimely and that the circumstances did not warrant reversing the initial ruling.

Hamid argued at the same hearing that he should be granted yet another continuance because his second wife had recently filed what amounted to his fourth visa application, which the INS had not yet acted upon. The court denied the motion. It then issued an oral ruling for Hamid to be removed to Jordan.

With the assistance of a newly retained attorney, Hamid appealed the removal order to the BIA. He argued that his previous two attorneys had made numerous mistakes in their representation that amounted to the ineffective assistance of counsel. The BIA denied Hamid's appeal. This timely appeal followed.

II. ANALYSIS

Hamid alleges that the ineffectiveness of his two prior counsel violated his due process rights. "Fifth Amendment guarantees of due process extend to aliens in deportation proceedings...." Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001). Ineffective assistance of counsel violates an alien's due process rights. Id. "The alien carries the burden of establishing that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to prove that he has suffered a denial of due process." Id. We review de novo a ruling by the BIA regarding the alleged ineffective assistance of counsel. Id.

In order to prove ineffective assistance of counsel, an alien "must (1) submit an affidavit describing the agreement for representation entered into with former counsel, (2) inform former counsel of the charge for the purpose of allowing him to respond to the complaints being made against him, and (3) report whether a complaint has been filed with the appropriate disciplinary authorities." Id. (citing Matter of Lozada, 19 I & N. Dec. 637 (BIA 1988)) (enumeration added).

The government maintains that the BIA was correct in holding that Hamid did not meet the Lozada requirements. Specifically, the government argues that Hamid did not furnish the BIA with evidence (1) of his agreements with his attorneys, (2) of complaints that he filed with the bar association, or (3) that his attorneys had an opportunity to respond to the charges. Hamid, on the other hand, contends that paragraph 20 of his affidavit that was submitted to the BIA references complaints that he filed with the Cuyahoga County Bar Association, which in turn gave counsel actual...