Massis v. Mukasey
| Decision Date | 09 December 2008 |
| Docket Number | No. 05-1329.,No. 05-1851.,No. 05-6981.,05-1329.,05-1851.,05-6981. |
| Citation | 549 F.3d 631 |
| Parties | Nimatallah Shafik MASSIS, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent. Nimatallah Shafik Massis, Petitioner, v. Michael B. Mukasey, United States Attorney General, Respondent. Nimatallah Shafik Massis, Petitioner-Appellant, v. Michael Chertoff, Secretary of Homeland Security; Michael J. Garcia, Assistant Secretary; Calvin McCormick, Interim Field Office Director; Michael B. Mukasey, United States Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Rachel Stutz, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, DC, for Petitioner/Appellant. Woei-Tyng Daniel Shieh, United States Department of Justice, Washington, D.C., for Respondents/Appellees.
ON BRIEF:
Paul R.Q. Wolfson, Victoria S. Shabo, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, DC, for Petitioner/Appellant. Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, Susan K. Houser, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondents/Appellees.
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Denied in part and dismissed in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge KING joined.
The petitioner, Nimatallah Shafik Massis, is a Jordanian national and a permanent resident of the United States. On February 25, 2005, the Board of Immigration Appeals ("BIA") found that Massis was deportable as an aggravated felon and that he did not qualify for a discretionary waiver of deportation under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).1 In these consolidated actions, Massis seeks review of the BIA's removal order on two grounds. First, Massis raises a claim of ineffective assistance of counsel based on his counsel's decision to concede deportability for Massis's June 6, 1995 conviction of reckless endangerment. Second, Massis argues that reckless endangerment is not a "crime of violence" and thus cannot form the basis of his deportation as an aggravated felon. For the reasons that follow, we deny in part and dismiss in part the petitions for review.
Massis was admitted to the United States as a lawful permanent resident on November 20, 1974. Evidence in the record shows that Massis had a history of hitting and pushing his wife, Hilda Massis. J.A. 54, 239. Massis and his wife eventually divorced in 1996.
On February 3, 1995, Massis was arrested after chasing his wife and two young girls with an ax in a residential neighborhood. Hilda Massis told the responding police officer that Massis "chased her up Parkland Drive screaming[,] `I'm going to kill you,' while holding a wood ax above his head." J.A. 53. While in pursuit, Massis fell to the ground and Hilda Massis and the two girls were able to run into a neighbor's house for safety. The police report filed for the incident included statements from witnesses affirming that "if Nimatallah did not fall, he would have killed her." J.A. 54. At the time of his arrest, Massis was under a court order to avoid contact with Hilda Massis, although he had repeatedly violated this order and had declared in a Maryland state court proceeding that "even with a divorce, he would always consider himself married to his wife." J.A. 280.
On March 3, 1995, Massis was charged with intent to murder, carrying a weapon openly with intent to injure, criminal contempt and reckless endangerment. On June 6, 1995, he pled guilty to one count of reckless endangerment and one count of criminal contempt and was sentenced to five years imprisonment.2 On June 28, 1996, the Immigration and Naturalization Service initiated removal proceedings against Massis under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable."3 Represented by counsel at a merits hearing before an immigration judge ("IJ") on December 31, 1998, Massis conceded deportability as an aggravated felon based on his reckless endangerment conviction. He sought a waiver of deportation under 8 U.S.C. § 1182(c), which the IJ eventually granted on March 19, 2003.4 Although the IJ noted that Massis "has a history of battering his wife and convictions which are related to his [spousal] abuse and inability or unwillingness to conform to acceptable standards of conduct," J.A. 240, the IJ found that Massis suffered from mental illness and that "his actual behavior since his incarceration is strongly indicative of rehabilitation," id. at 241. The IJ concluded that "[i]t would be unconscionable to `discard' [Massis], who has been so troublesome because of his mental illness, by jettisoning him into a violent region of the world where he will have inadequate support for his mental illness." Id. at 242.
The Department of Homeland Security ("DHS") appealed the IJ's decision to the BIA. On appeal, Massis was represented by different counsel. The BIA vacated the IJ's grant of section 212(c) relief on February 25, 2005, holding that Massis had not "demonstrated extraordinary circumstances that might warrant relief." J.A. 281. The BIA noted that the IJ's concern about "the supposed unavailability of psychiatric care in Jordan" was "not supported by persuasive facts" and emphasized that Massis had failed to accept responsibility for a "violent history about which he expresses little remorse." Id. The BIA found that Massis had "not shown himself to be a desirable resident of the United States" and ordered Massis deported to Jordan. Id. Massis filed a timely petition for review of the BIA's deportation order on March 25, 2005. J.A. 282.
Massis retained a third counsel and filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland on May 5, 2005, seeking "declaratory and injunctive relief to enjoin his imminent removal from the United States." J.A. 302-12. On June 27, 2005, the district court transferred the case to this court under section 106(a) of the REAL ID Act of 2005, which vests jurisdiction over such habeas petitions in the courts of appeals.5 Both parties consented to the transfer order.
In addition to his habeas petition, Massis filed a motion to reconsider and reopen with the BIA on May 25, 2005, asserting a claim for ineffective assistance of counsel based on his first counsel's concession of deportability at his 1998 removal hearing. J.A. 318-33. Relying on Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), Massis also argued that reckless endangerment did not constitute a crime of violence and that his conviction should not have subjected him to removal proceedings. The BIA denied this motion on July 26, 2005, on the ground that Massis had failed to "file a motion to reopen within a reasonable period of the alleged ineffective assistance." J.A. 364. In denying the motion, the BIA noted that Massis "had an opportunity to file a motion to remand proceedings based on ineffective assistance of counsel while his case was on appeal, but failed to do so" and instead "waited until almost 3 months after our February 25, 2005, decision to raise his ineffective assistance of counsel claim." Id. Massis filed a timely petition for review of the BIA's decision to deny his motion to reconsider and reopen on August 19, 2005. J.A. 370-72.
The following three petitions were consolidated for purposes of appeal:
• 05-1329, Massis's petition for review of the BIA's deportation order
• 05-6981, Massis's petition for a writ of habeas corpus
• 05-1851, Massis's petition for review of the BIA's decision to deny Massis's motion to reopen and reconsider
In each of his petitions, Massis seeks to revisit his original counsel's concession of deportability on two grounds. First, he raises a due process claim, arguing that his counsel's concession of deportability in the 1998 removal hearing amounted to ineffective assistance. He argues that the BIA improperly denied his motion to reopen his case to consider this claim and asks this court to find that his counsel's ineffective assistance violated his due process rights. Second, Massis argues that this court may consider "the ultimate substantive question" of whether reckless endangerment constitutes a crime of violence—and whether Massis is removable—because the issue is "purely legal in nature" and because "[i]t would be a profound miscarriage of justice to remove him without either the agency or this Court considering the fundamental question of whether he is removable." Petitioner's Br. at 13.
Massis's arguments on appeal arise out of the recent Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Supreme Court addressed whether a conviction of driving under the influence of alcohol ("DUI") constituted a crime of violence under 18 U.S.C. § 16. The Court held that a crime of violence involves a "substantial risk" of "using physical force against another person in the course of committing the offense" and found that a DUI under Florida law did not qualify as a crime of violence for the purposes of determining the petitioner's removability. 543 U.S. at 11, 125 S.Ct. 377 (internal quotations omitted). Massis cites Minor v. State, 326 Md. 436, 605 A.2d 138 (1992), and related cases to argue on appeal that the Maryland courts have held that reckless endangerment under Maryland law "does not require proof of any violent or forceful act of the defendant." Petitioner's Br. at 21. Although Massis conceded deportability based on his reckless endangerment conviction and failed to challenge this concession before the IJ or the BIA, Massis now contends that reckless endangerment under Maryland law does not qualify as a crime of...
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