Kada v. Barr

• Decision Date: 10 January 2020
• Docket Number: Nos. 18-4038/19-3218,s. 18-4038/19-3218
• Citation: 946 F.3d 960
• Parties: Samir Yousif KADA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

946 F.3d 960

Samir Yousif KADA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Nos. 18-4038/19-3218

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 10, 2020

ON BRIEF: Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan, for Petitioner.Brendan P. Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.

JANE B. STRANCH, Circuit Judge.

In this consolidated appeal, PetitionerSamir Kada seeks review of orders from the Board of Immigration Appeals(BIA) denying his motions to reopen.Kada argues that his due process rights were violated due to his attorney’s ineffective assistance.In the alternative, he claims that his attorney’s serious health problems turned the removal proceedings into a sham, violating his due process rights.For the following reasons, we GRANT Kada’s petition for review in Case No. 19-3218 based on his ineffective assistance of counsel claim.We VACATE the BIA’s order denying his second motion to reopen, and REMAND for further proceedings in that case.

I.BACKGROUND

Kada is a Chaldean Christian from Iraq.He and his family immigrated to the United States when he was twelve as Lawful Permanent Residents.In 2017, Kada was convicted of several crimes, including assault with a deadly weapon and carrying a concealed weapon in violation of Michigan law.The Department of Homeland Security placed him in removal proceedings on March 27, 2018, alleging removability under 8 U.S.C. § 1227(a)(2)(C), based on his firearms convictions under Michigan law.

Attorney Richard Kent initially represented Kada in the removal proceedings.At a hearing on April 17, 2018, Kada informed an immigration judge (IJ) that he would apply for cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT).The judge set the following schedule: a May 1 deadline for Kada to submit an administrative brief regarding his claim that his convictions were not disqualifying aggravated felonies or particularly serious crimes, a May 8 deadline to file his application for relief, and a May 15 deadline for the Government to respond.

Kent filed an untimely brief on Kada’s behalf on May 3, conceding that Kada’s convictions were aggravated felonies disqualifying him from asylum and cancellation of removal but claiming that Kada remained eligible for withholding of removal under the CAT because the convictions were not particularly serious crimes.The brief acknowledged Kada’s upcoming deadline to file his applications with the court, noting "Respondent has application for relief in process for Withholding, [and] his next Individual Calendar court date is to address that issue."Kent failed, however, to file Kada’s application for relief under the CAT or to request an extension of time by the May 8 filing deadline.After the Government responded to Kada’s brief, on May 16, 2018, the IJ issued a written decision determining that Kada was removable as charged, deeming his applications for relief abandoned, and ordering him to be removed to Iraq.

A.First Motion to Reopen

Kent filed a timely motion to reconsider and reopen.He asserted that his ongoing serious health problems prevented him from meeting the deadlines.Kent was hospitalized from February 5 through 11 for a serious illness and experienced a "slow relapse," which ultimately resulted in multiple hospitalizations throughout May and into June, specifically May 10–17; 18–22; 27–29; and June 5.Kent attached his medical records and included Kada’s CAT application, evidence, and witness list.

In the application for relief under the CAT attached to the motion to reopen, Kada explained that he had five uncles who "disappeared under Saddam Hussein," and other members of his family "were kidnapped by ISIS and held hostage for money."He alleged that he is "completely Americanized," knows "little Arabic" and "lack[s] any cultural education as to life in Iraq."He emphasized his status as a Chaldean Christian, explaining "The US pullout led to ISIS domination of the Chaldean regions of Iraq, and that was followed by their being destroyed by the Shia dominated Popular Mobilization Forces [PMF], who are systematically oppressing Iraqi Christians just as badly as ISIS did."Kada also submitted country conditions reports regarding the sectarian conflict in Iraq, including evidence that internal relocation is not available in Iraq and should not be used as a basis to deny a stay of removal.Kada also argued that, if he were not tortured because of his status as a Chaldean Christian, he would be singled out for torture by Iraqi authorities because of his criminal record and status as a deportee from the United States.

The Government opposed Kada’s motion to reconsider and reopen, noting that Kent’s medical records related to periods in February, before the removal proceedings commenced, and in May, after the missed May 8 deadline.Kent did not respond with further information about his health problems or additional explanation for the missed deadline.On June 19, 2018, the IJ denied Kada’s motion to reopen based on its finding that Kent had failed to establish his incapacity on or shortly before the May 8 filing deadline.The court noted that Kent’s hospitalization did not occur until "two days after the filing deadline"; "counsel was able to submit a large packet of evidence prior to the application due date"; and counsel failed to explain "why he was able to file that evidence packet but was unable to timely file respondent’s application for relief five days later."

Kent timely appealed to the BIA on Kada’s behalf.The BIA denied the appeal, agreeing with the IJ’s conclusion that Kada had abandoned his application under the CAT.Kada petitioned this court for review on October 24, 2018.

B.Second Motion to Reopen

Kada sought new counsel and filed a second motion to reopen before the BIA, which included the argument that Kent provided ineffective assistance of counsel by failing to file Kada’s CAT application.As part of this motion to reopen, Kada submitted documents demonstrating that he complied with the procedural requirements for raising an ineffective assistance of counsel claim.He also submitted State Department country condition reports, which explained that Christians experience abuse and harassment by PMF members, and that the Iraqi government continues its struggle with the remnants of the Islamic State as well as articles indicating that the Iraqi judicial system often ignores evidence that defendants have been tortured in state custody.The 2017State Department Country Report, included in the record, states that the "most significant human rights issues included allegations of unlawful killings by some members of the ISF [Iraqi Security Forces], particularly some elements of the PMF; disappearance and extortion by PMF elements; torture; harsh and life-threatening conditions in detention and prison facilities; arbitrary arrests and detention.""Impunity effectively existed for government officials and security force personnel, including the Peshmerga and PMF."

Also according to the evidence, armed groups threaten, pressure and harass Christians to force them to observe Islamic customs, and Christians cannot hide their religion or move about the country to a safer location because their national identity cards reference their religion."[G]overnment officials, as well as local and international human rights organizations, documented instances of government agents committing torture and other abuses.There were reports police sometimes used abusive methods and coerced confessions for investigations, and courts accepted forced confessions as evidence. ...As in previous years, there were credible reports that government security forces, to include militia units associated with the PMF, abused and tortured individuals during arrest, pretrial detention, and after conviction."Kada further provided affidavits from purported experts indicating that Iraqi Christians and Iraqis returning from the United States with criminal records are targeted for abuse and harassment in Iraq.

Before the BIA ruled on Kada’s pending motion to reopen, he was removed to Iraq on December 12, 2018.He supplemented his motion to reopen with a written declaration stating that, after he was removed to Iraq, three armed men pointed weapons at him but eventually let him go.Since escaping that kidnapping attempt, Kada has stayed hidden inside where he lacks access to medication.Kada’s friend reported the incident to the police, and the men who tried to kidnap Kada were eventually apprehended.They confessed that they were motivated to kidnap Kada to blackmail his family in the United States for ransom money.

On March 6, 2019, the BIA denied Kada’s motion to reopen, concluding that, even though Kent had provided incompetent assistance, Kada had not demonstrated that he had been prejudiced by Kent’s failure to timely file his CAT application.Kada timely petitioned for review on March 20, 2019, and we consolidated the two petitions for review.

II.ANALYSIS

We review the BIA’s denial of a motion to reopen for an abuse of discretion.Sako v. Gonzales,434 F.3d 857, 863(6th Cir.2006).Because Kada had obtained new counsel to file his second motion to reopen, based on an ineffective assistance of counsel claim, we begin our analysis there.Allegations of due process violations in removal proceedings are reviewed de novo.Camara v. Holder , 705 F.3d 219, 223(6th Cir.2013);Denko v. I.N.S. , 351 F.3d 717, 723(6th Cir.2003)("[A]n ineffective assistance of counsel claim [in a deportation proceeding] is reviewed under the Due Process Clause of the Fifth Amendment.").IJs retain "broad discretion in conducting [a removal] hearing," but the Fifth Amendment entitles immigrants facing deportation "to a full and fair hearing."Lin v. Holder,565 F.3d 971, 979(6th Cir.2009)...