Kay v. Ashcroft
| Decision Date | 29 October 2004 |
| Docket Number | No. 02-3140.,No. 03-2125.,02-3140.,03-2125. |
| Citation | 387 F.3d 664 |
| Parties | Maung Zar KAY, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rhoda W. Domingo, Kim D. Pederson (argued), San Francisco, CA, for Petitioner.
George P. Katsivalis, Chicago, IL, Aviva L. Poczter (argued), Emily A. Radford, Washington, DC, for Respondent.
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
Maung Zar Kay, a Burmese national, born February 4, 1978, fled to the United States in October 1997.1 He was admitted into this country as a tourist seeking asylum on October 8, 1997. The Board ordered Kay removable in absentia on September 9, 1998. Kay sought to reopen the proceedings for substantive consideration of his asylum and withholding of removal petition. He also filed a subsequent motion to reopen for consideration of his eligibility for relief under the Convention Against Torture (CAT). The Board denied both motions. We affirm the Board's decision to deny Kay's motion to reopen to seek asylum and withholding of removal because he did not show that his failure to appear was due to exceptional circumstances. However, we reverse the Board's decision to deny Kay's motion to reopen for consideration of his CAT eligibility as the decision lacked a reasoned basis.
After his entry into the United States, Kay submitted an application for asylum and withholding of removal on December 6, 1997 and the matter was referred to an Immigration Judge (IJ) in Chicago, Illinois on March 30, 1998. Kay appeared pro se for his first asylum hearing on April 29, 1998. The hearing was rescheduled, due to the IJ's absence, for July 22, 1998. Prior to the rescheduled hearing date, Kay relocated from Chicago to San Francisco, California. On July 14, 1998, the Immigration Court received a correct Change of Address Notice from Kay. Upon receiving the Change of Address Notice, the court issued another notice postponing the scheduled July 22 hearing until September 9, 1998, and stating in the notice that the hearing was to take place in Chicago. Kay, under the mistaken belief that changing his address with the court would change the venue of his asylum hearing, failed to appear in Chicago on September 9 causing the IJ to deny his petition for asylum in absentia and order him removable.2
On September 24, 1998, after receiving the in absentia order of removal, Kay retained Bruce A. Fodiman as counsel. Counsel filed a timely motion to reopen proceedings on October 9, 1998, which the IJ denied on December 31, 1998. The IJ found that Kay received proper notice of the hearing and that Kay's erroneous belief that a Change of Address Notice would change the location of his asylum did not constitute exceptional circumstances sufficient to reopen the proceedings. 8 U.S.C. § 1229a(b)(5)(C). Kay appealed the IJ's decision to the BIA on January 21, 1999.
On November 7, 2000, during the pendency of Kay's appeal of the IJ's denial of his motion to reopen, counsel filed a separate motion with the BIA, identifying the pleading as a "motion to remand," as opposed to correctly labeling it a motion to reopen, seeking protection under CAT. In support of this motion, counsel attached a copy of one page of Kay's Form I-589 asylum application as well as the 1999 State Department's Country Report on Burma. On July 19, 2002, the BIA denied both of Kay's motions, upholding the IJ's December 31, 1998 denial of Kay's original motion to reopen and finding his November 7, 2000 motion for relief under CAT untimely. As to Kay's original motion to reopen, the BIA agreed with the IJ that Kay had failed to demonstrate "exceptional circumstances" because he was given fair notice of the hearing's time and location and his failure to appear was not due to circumstances beyond his control. Concerning Kay's CAT motion, the Board found that in order to seek protection under CAT, pursuant to 8 C.F.R. § 208.17(a), Kay was required to file his CAT motion to reopen prior to June 21, 1999, as he was under a final order of removal that "became final" prior to March 22, 1999. 8 C.F.R. § 208.18(b)(2).
After retaining new counsel, Rhoda Wilkinson Domingo (appellate counsel), Kay filed a third motion to reopen on October 15, 2002, arguing that former counsel rendered ineffective assistance by failing to file the CAT motion in a timely manner. In support of the October 15 motion, appellate counsel submitted: (1) a complaint to the California State Bar concerning former counsel; (2) a letter to former counsel detailing Kay's submission to the California Bar; (3) a copy of the attorney-client agreement between Kay and Attorney Fodiman; (4) the BIA's July 19, 2002 decision; and (5) a psychological assessment of Kay conducted by Elizabeth Schenk as well as her curriculum vitae. The psychological assessment by Dr. Schenk diagnosed Kay with Post Traumatic Stress Disorder (PTSD) and contained a detailed account of Kay's experiences in Burma. AR2 at 32-75.3 In response to appellate counsel's ineffective assistance allegations, former counsel responded that he labeled the CAT motion a "motion to remand" and failed to file the CAT motion prior to June 21, 1999, because it was his understanding that "it was the longstanding policy of the Board to not subject motions to remand in a pending direct appeal of a case, such as Mr. Kay's, to the time restrictions imposed on motions to reopen." AR1 at 5.4 On March 27, 2003, in a paragraph-long per curiam unpublished order, the BIA denied Kay's October 15 motion stating:
We need not determine whether the respondent received ineffective assistance of counsel, however, because, in our judgment, the documentation submitted by the respondent falls short of making a prima facie showing that "it is more likely than not that he ... would be tortured" if he were to return to Burma. Although the country condition material in the record confirms some instances of brutality by the military in Burma, it has not been prima facie established that it is more likely than not that respondent will be subject to such treatment. Accordingly, the motion is denied.
(internal citations omitted). Under 8 U.S.C. § 1252(b)(1), an applicant must petition for review in this court within 30 days of the final order of removal. The Board entered its first order of removal on July 19, 2002, and Kay filed his first petition for review in this court on August 19, 2002. The Board entered its second order on March 27, 2003, and Kay filed his second petition for review on April 25, 2003. Therefore, both appeals were timely. On April 28, 2003, we consolidated review of the petitioner's two appeals of the BIA's July 19, 2002 order (No. 02-3140) and March 27, 2003 order (No. 03-2125).
Seeking asylum, withholding of removal, and protection under CAT, Kay argues that he will be subjected to persecution and torture at the hands of the Burmese government if returned to his native country. The Burmese government has a long history of violating human rights, suppressing political speech, and persecuting ethnic and religious minorities. See Bureau of Democracy, Human Rights, and Labor, United States Department of State, Burma, Country Reports on Human Rights Practices 2002 (March 31, 2003), http://www.state.gov/g/drl/rls/hrrpt/ 2002/18237.htm (last viewed October 8, 2004) (2002 Burma Country Report). The 2002 Burma Country Report indicates that Burma is still ruled by a military junta which has been reported to kill, rape, and place its citizens in forced labor camps, as well as torture and beat political detainees suspected of espousing pro-democratic ideologies. See id.; Lwin v. INS, 144 F.3d 505 (7th Cir.1998) ().
During his childhood, Kay alleges that his father was an active member and sergeant in the Kachin Independence Association (KIA), a political opposition group to the Burmese government. Though Kay was not an active member of KIA, its members frequently visited his home. He recalls that as a child his father was tortured and his brother killed by government soldiers. He also claims that while attending classes at Hlaing College in Rangoon, he became involved in student rallies and demonstrations to raise consciousness about the Burmese government's human rights violations. He states that he was arrested twice by Burmese military officials in Rangoon. On the first occasion, December 3, 1996, in Shwe Dagon Pagoda, he was arrested after a student protest and detained for several hours. He was subsequently released but went into hiding in Kun Gyan Gon. On the second occasion, he claims he was held by Burmese military men for two weeks and beaten severely. According to Dr. Schenk, he still carries scars on several parts of his body where the soldiers beat him. AR1 at 66. After this incident his family arranged for him to flee Burma and seek asylum in the United States.5
Kay attached the following evidence to his Form I-589:(1) several newspaper articles which corroborate his account of the atrocities committed by the Burmese military; (2) a Hlaing College registrar form stating that Kay was a third year student at the University from 1996 to 1997; (3) a letter from the Pan Kachin Development Society in California stating that Kay, as a member of the Kachin ethnic minority, faces "imminent danger" if returned to Burma; and (4) a 1946 United States War Department release attesting to the bravery of the "Kachin Rangers" in World War II and discussing their extensive combat training. AR1 at 93-147. Of particular note, Kay attached several articles concerning the December 3, 1996 student protests in Rangoon. The first article, dated ...
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