Hamoui v. Ashcroft, 02-72480.
| Decision Date | 08 November 2004 |
| Docket Number | No. 03-35082.,No. 02-72480.,No. 03-35286.,02-72480.,03-35082.,03-35286. |
| Citation | 389 F.3d 821 |
| Parties | Safouh HAMOUI; Hanan Ismail; Sozan Hamoui; Nadin Hamoui; Rham Hamoui, Petitioners, v. John ASHCROFT, Attorney General, Respondent. Safouh Hamoui; Hanan Ismail; Nadin Hamoui; Rham Hamoui, Petitioners-Appellants, v. William Johnston, District Director; Immigration and Naturalization Service, Respondents-Appellees, Aaron G. Wilson, Respondent. Safouh Hamoui; Hanan Ismail; Nadin Hamoui; Rham Hamoui, Petitioners-Appellees, v. Aaron G. Wilson, Interim District Director; Bureau of Immigration and Customs Enforcement, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bernice Funk; Michael B. King, Lane, Powell, Spears, Lubersky, LLP; Seattle, WA, for the petitioners/appellants/cross-appellees.
Andrew C. Maclachlan, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondents/appellees/cross-appellants.
On Petition for Review of an Order of the Board of Immigration Appeals. D.C. No. CV-02-01145-BJR.
Appeal from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. CV-02-01145-MJP.
Before: CANBY, WARDLAW, and GOULD, Circuit Judges.
Safouh Hamoui brings before us a petition for review of an order of the Board of Immigration Appeals ("BIA"), as well as an appeal from the district court.1 The petition for review is determinative here. The BIA denied as untimely Hamoui's motion to reopen his deportation proceedings to present a claim for relief under the Convention Against Torture.2 The BIA further held that ineffective assistance of counsel did not excuse the untimeliness because there was no prejudice: the evidence already of record and Hamoui's additional showing did not establish that he would be tortured if deported to Syria. We conclude that the Board abused its discretion in denying Hamoui's petition because it both applied the wrong standard and inappropriately based its denial of relief on evidence and findings in Hamoui's 1997 asylum hearing. Hamoui's showing presents a prima facie case for relief. We therefore grant the petition for review, reverse the BIA's decision, and remand to the BIA with instructions to afford Hamoui a full evidentiary hearing on his claim under the Convention Against Torture.
Hamoui also filed a petition for habeas corpus in district court to stay his deportation, again relying on his claim under the Convention Against Torture. The district court ultimately dismissed the habeas petition, but enjoined Hamoui's deportation pending further proceedings in our court on Hamoui's petition for review. Our disposition of the petition for review renders moot Hamoui's appeal and the Immigration and Naturalization Service's ("INS") cross-appeal from the district court. We therefore vacate the district court's injunction and dismiss those appeals.
Hamoui, a former pilot in the Syrian air force, entered the United States as a visitor for pleasure in 1992. He overstayed his visa and subsequently applied for asylum. His asylum claim was administratively denied and deportation proceedings were initiated against him.
Hamoui had a hearing in 1997 before an Immigration Judge on his claims for asylum and withholding of deportation. The Immigration Judge determined that Hamoui had failed to demonstrate past persecution or a fear of future persecution on one of the five statutorily protected grounds.3 Hamoui appealed to the BIA, which affirmed the Immigration Judge's decision.4 At this point in the proceedings, Hamoui made the first of four attorney changes.
Hamoui's new attorney, Antonio Salazar, petitioned this court for review of the BIA's decision, but failed to apply for protection under the Convention Against Torture, a remedy that had become available in 1999. This court denied Hamoui's petition for review. See Hamoui v. INS, 216 F.3d 1083 (9th Cir.2000) (unpublished disposition). Hamoui subsequently switched attorneys again, hiring Dennis Olsen.
Olsen moved to reopen INS proceedings in order to make a claim under the Convention Against Torture, but Olsen filed a facially inadequate motion and then failed to seek the required stay of deportation. Because Olsen failed to file an application for a stay of deportation, the INS notified the Hamoui family that they were to depart voluntarily by July 5, 2000, or they would be deported. On the advice of Olsen, the Hamoui family failed to report for voluntary departure. On August 22, 2000, Olsen finally filed a facially adequate but untimely motion to reopen to assert Hamoui's rights under the Convention Against Torture. Nothing further happened in Hamoui's case until February 2002, when the Hamoui family was arrested and placed in federal detention. On March 7, 2002, the BIA denied as untimely Hamoui's motion to reopen.5 At this point, Hamoui retained current counsel, Bernice Funk. On March 27, 2002, Hamoui filed another motion to reopen with the BIA, asserting ineffective assistance of prior counsel.6 Hamoui also filed a petition for habeas corpus in the United States District Court for the Western District of Washington, seeking the release of the Hamoui family from federal detention and an injunction that would prevent the INS from deporting the Hamoui family.7 Hamoui twice sought emergency stays of deportation from the BIA, which denied the requests. The district court, however, did initially grant a temporary stay of deportation, which it then extended until further order of the district court.
On August 2, 2002, the BIA denied Hamoui's motion to reopen and reconsider, rejecting Hamoui's claim of ineffective assistance of counsel on the ground that there had been no prejudice. Hamoui immediately sought review by the petition for review that is now before us.
Once notified of the BIA's decision, the district court dismissed Hamoui's habeas corpus petition for lack of jurisdiction but opted to keep its stay in effect. In a subsequent order, the district court clarified that it had not granted Hamoui a stay of removal but, rather, had entered an injunction against the INS, which prevented the INS from deporting the Hamoui family before we could rule on his petition for review. Hamoui appeals the dismissal of his habeas claim by the district court. The INS8 cross-appeals the district court's injunction.
The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), apply to Hamoui's petition for review because deportation proceedings were begun prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Under IIRIRA's transitional rules, we have jurisdiction to review the BIA's denial of a motion to reopen under the now-repealed § 106(a) of the Immigration and Nationality Act ("INA") 8 U.S.C. § 1105a(a). See Rodriguez-Lariz, 282 F.3d at 1222; Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). The Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), supra note 2, provides that we may review claims under the Convention Against Torture only as part of review of a final order of removal. FARRA, § 2242(d). Denial of a motion to reopen to present a claim under the Convention qualifies as a final order of removal. See Khourassany v. INS, 208 F.3d 1096, 1099-1100 & n. 4 (9th Cir.2000). We therefore have jurisdiction to address Hamoui's petition for review.
We review for an abuse of discretion the BIA's denial of a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004). The BIA abuses its discretion when it acts "`arbitrarily, irrationally, or contrary to law.'" Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). We review de novo questions of law and claims of due process violations in deportation proceedings. See Cano-Merida v. INS, 311 F.3d 960, 964(9th Cir.2002); Rodriguez-Lariz, 282 F.3d at 1222. We review the BIA's factual findings for substantial evidence. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004).
Before the BIA, the INS did not contest Hamoui's assertions that his failure timely to file a motion to reopen for purposes of a claim under the Convention Against Torture was due to the ineffective assistance of his prior counsel. The BIA recited the many failures of counsel and assumed deficient performance. We conclude that the attorneys' constitutionally deficient performance was established. Ineffective assistance of counsel amounting to a due process violation permits untimely reopening. See Varela v. INS, 204 F.3d 1237, 1240 n. 6 (9th Cir.2000). The BIA denied reopening on the ground urged by the INS: it held that Hamoui had not been prejudiced by counsels' performance because his claim under the Convention Against Torture was deficient on the merits. The issues before us, therefore, are whether the grounds upon which the BIA found no prejudice were erroneous, and whether Hamoui presented sufficient evidence of torture to require further evidentiary proceedings. We resolve both issues in Hamoui's favor.
To qualify for reopening of deportation proceedings under the Convention Against Torture, a petitioner must establish that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2); Khup v. Ashcroft, 376 F.3d 898, 906 (9th Cir.2004); Azanor, 364 F.3d at 1018. A claim under the Convention differs from an asylum claim because there is no requirement that the petitioner show that torture...
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