Lin v. Ashcroft
| Decision Date | 26 January 2004 |
| Docket Number | No. 02-70662.,02-70662. |
| Citation | 356 F.3d 1027 |
| Parties | Jie LIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Melissa K. Pifko, Adrian F. Davis and Amos E. Hartston, Latham & Watkins, Los Angeles, CA, for the petitioner.
Daniel E. Goldman and Christine A. Bither, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before B. FLETCHER, KOZINSKI, and TROTT, Circuit Judges.
Jie Lin ("Lin") petitions for review of the Board of Immigration Appeals ("BIA") denial of his motion to reopen his application for asylum, withholding of removal, and relief under the Convention Against Torture.1 He asserts that his claims were prejudiced due to ineffective assistance of counsel. Lin's mother bore a second child in violation of China's mandatory limits on procreation, which Lin alleges led to persecution of her and her family, including him. Lin argues that his prior counsel presented no legal argument in Lin's hearing that he warranted refugee status — either on a basis derivative of the persecution of his parents or based on his own previous persecution, which he claims will recur if he is returned to China — and that Lin's counsel failed to discover critical facts, in part because she expected to be able to substitute other counsel to represent Lin. We grant the petition and remand for further proceedings before the BIA.
We have jurisdiction to review the BIA's Order dismissing Lin's Motion to Reopen under 8 U.S.C. § 1252(b)(2). The BIA acknowledged in its Order of Dismissal that Lin has met the three procedural requirements for pursuing an ineffective assistance of counsel claim listed in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), which were adopted by this court in Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). Specifically, Lin furnished the BIA with an affidavit describing in detail his agreement for representation by his prior counsel, informed her of his allegations against her and afforded her the opportunity to respond to them; and reported that he had filed a complaint against prior counsel with the appropriate state bar.
On January 27, 2001, Lin arrived at Los Angeles International Airport on a flight from China. He had been advised to try to appear to be part of another Chinese family traveling on the same flight. He was found alone in an airport restroom and taken for interrogation. Lin was 14 years old, could not speak English, and had no knowledge of the American legal system. He was immediately placed in detention by the Immigration and Naturalization Service ("INS"). A removal hearing was scheduled for February 6, 2001.
On that date, Lin informed the Immigration Judge ("IJ") that his family in New York was arranging for an attorney to represent him. Lin's relative, Zhong Qin Lin ("Zhong"), contacted an attorney about representing Lin. In three successive hearings, on February 20, February 27, and March 6, 2001, counsel informed the IJ by phone that, while she had spoken to Lin's family, she had not yet been retained. A pro bono attorney, Stephen Conklin, represented Lin during a March 8, 2001 hearing, during which New York counsel finally indicated by phone that she had been retained. Counsel's phone number was provided to Lin on that date.
Counsel obtained continuances of the hearings scheduled on March 22 and April 12. At the latter hearing, both the IJ and the INS attorney reminded counsel that her client was an incarcerated minor and admonished her that she should not take cases so far from New York if she could not appear at the hearings. After counsel indicated that she was unavailable to attend a hearing on the West Coast for the next three months, the IJ told counsel that the hearing would take place on July 9, 2001 without fail.
During this period, from February 6 until July 9, 2001, Lin claims that counsel never met with him in person, nor interviewed him, nor spoke directly to him. In an uncorroborated declaration presented to the BIA at its hearing on the Motion to Reopen, counsel stated that she spoke with Zhong about Lin's case several times in depth, and that she spoke with Lin as well.2
On July 9, the date of the adjourned hearing, counsel was not present. The IJ called her in New York, pointed out that everyone else was present, and asked where she was. She stated that two weeks ago she had arranged for a local immigration attorney, Martin Guajardo ("Guajardo"), to take on the case and appear on Lin's behalf, and that she had sent him the materials regarding the case. The IJ called Guajardo's office. He was informed that Guajardo was at that moment appearing in another case and that Lin's hearing was not listed on his calendar. Guajardo's office said that it would contact him; the IJ suggested that New York counsel be called as well. The court then went off the record.
When the court came back on the record, the IJ was on the phone with New York counsel. She ostensibly was representing Lin by telephone. The transcript suggests that the court was not well-equipped for a telephonic hearing. Both counsel and those in the courtroom experienced some problems with hearing one another over the telephone, although the parties dispute the extent and significance of these problems. In the midst of the hearing, while Lin's counsel was questioning him, the clerk relayed a message from Guajardo saying that he had been asked to take over the case, but had not been retained, and so did not appear. New York counsel stated that she had sent him "the actual case and the money." She began to explain the circumstances at length. The IJ tried to interrupt her, saying "I don't need to hear anymore" and interjecting her name several times during her explanation; when she stopped talking the IJ simply said "let's just go on." New York counsel then concluded her examination of her client, which by any measure was clearly inadequate; the IJ then took over the questioning.
After several questions by the government, Lin's counsel declined the opportunity for redirect examination. Her entire argument to the court following testimony is recorded in the transcript as follows:
Your honor, I believe that we do have a strong case, but, regarding (indiscernible) that his family suffered persecution because of their violation of the family planning policy and the parents ran away from home (indiscernible) leaving the respondent (indiscernible) grandparents. Even after that, they didn't have any (indiscernible). (Indiscernible) request for the fine and he couldn't go to school. I (indiscernible) he will, he will be (indiscernible) one of the (indiscernible) grounds for asylum (indiscernible) eligible to be a refugee.
To the extent that it is possible to discern what counsel was saying, it appears to be a reiteration of facts adduced at the hearing, followed by a conclusory legal argument that Lin qualified as a refugee and warranted asylum.
At the end of the hearing, the IJ denied Lin's application for asylum. He made relatively few factual findings. Among them were: Lin resided in a village within Fujian province in China, and his parents had had a second child in violation of China's mandatory limits on procreation.3 At some point, Lin's parents and younger brother abandoned their residence and went into hiding, sending Lin to live with his maternal grandparents. Government authorities levied what Lin believed to be a 50,000 renminbi fine against his parents, but were unable to locate them so that they could collect it. They later tried to collect this fine from Lin's grandparents. Finally, either a parent or grandparent eventually arranged for Lin to leave for the United States using a false passport. The IJ also noted that parts of Lin's testimony at his hearing contradicted portions of his sworn statement to his interrogators at the airport, the latter including a statement that he had come to the United States to attend school.4 Lin now disavows some of the particulars of his responses given at the airport, attributing misstatements to fatigue and fright.
More generally, the IJ found that Lin had simply failed to carry his burden to provide "believable, consistent and detailed" testimony that could "provide a plausible and coherent account for the basis of his alleged fear." Lin provided "no documentation in support of his claim for asylum, no identification documents, no evidence in support of any of the testimony [he] provided ... during the course of his examination." What testimony Lin did provide was "lacking in any detail and insufficient to provide corroboration." While finding that a fine was levied against the parents, and later applied to the grandparents, the IJ found "no past persecution nor ... present persecution since government authorities have in no way attempted to punish, imprison, detain or inflict either mental or physical harm upon [Lin] for the failure of [his] parents or grandparents to comply with the coercive family practice in China."
Lin appealed. New York counsel filed a one-page attachment to his Notice of Appeal on his behalf on July 26, 2001. In it, she made six arguments: that the IJ did not give proper weight to Lin's testimony; that the IJ did not account for Lin's young age in evaluating his testimony; that the adverse credibility finding was in error; that the factual finding that Lin had not suffered personal harm was in error; that persecution of parents makes their children eligible for asylum, because, for example, the sterilization of Lin's mother led to her poor health; and that Lin would be jailed and tortured upon being returned to China as punishment for having departed illegally....
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