Siong v. I.N.S.
| Decision Date | 23 July 2004 |
| Docket Number | No. 99-71524.,No. 03-71379.,99-71524.,03-71379. |
| Parties | Heu Long SIONG; Bao Moua Siong; Enevada Siong; Yang Yi Siong; Cheng Kou Siong; May Siong, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Heu Long Siong; Bao Moua Siong; Enevada Siong; Yang Yi Siong; Cheng Kou Siong; May Siong, Petitioners, v. John Ashcroft, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Heu Long Siong; Bao Moua Siong; Enevada Siong; Yang Yi Siong; Cheng Kou Siong; May Siong, Petitioners,
v.
John Ashcroft, Attorney General, Respondent.
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Stephen V. Scribner, Santa Rosa, CA, for the petitioners.
Daniel D. McClain, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondents.
On Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A71-947-830, A71-947-831, A71-947-832, A71-947-833, A71-947-834, A71-947-835.
Before: REINHARDT, TASHIMA, and BERZON, Circuit Judges.
TASHIMA, Circuit Judge:
In No. 03-71379, petitioners Heu Long Siong, his wife, and his four children petition for review of a decision of the Board of Immigration Appeals ("BIA" or "Board"), dismissing their motion to reopen their deportation proceedings. In No. 99-71524, Siong1 had previously petitioned this court to review the decision of the BIA dismissing as untimely his appeal from the decision of the Immigration
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Judge ("IJ"). We vacated submission of the prior case and held it in abeyance pending the BIA's consideration of Siong's motion to reopen proceedings. The BIA subsequently denied the motion to reopen, and Siong filed a new petition for review. The cases were consolidated for consideration.2 We have jurisdiction pursuant to former 8 U.S.C. § 1105a, as amended by § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997).
Siong and his wife are natives of Laos, of Hmong ethnicity, and citizens of France. Their children are natives and citizens of France, where their family lived for 13 years. During the Vietnam War, Siong was trained by the Central Intelligence Agency ("CIA") to spy on North Vietnamese troops and to search for missing American soldiers. He served the CIA in Laos for 11 years, until the United States withdrew, at which time he and his family went to refugee camps in Thailand. He did not feel safe in Thailand "because of Vietnamese Communists who were sent out to kill pro-American Laotian spies in the camp" and therefore fled with his family to France in 1977.
In a hearing before the IJ, Siong testified that he was unable to return to Laos because it was too dangerous. One of Siong's friends, Vue Mai, who also had been a United States collaborator, had returned to Laos and was killed by the communist government.
Siong also testified about his inability to return to France. He stated that France was not safe for him because "the communist government of Laos sent people to look for him in France." Several of Siong's acquaintances who, like him, had worked for the CIA and fled to France had been harmed.3 Furthermore, his wife had received written threats in 1988 and 1989 because her father was a prominent general who fought against the Laotian communist government. Siong reported the threats to the French police but did not bring the written threats to the police station because he believed no one would be able to read Lao. Because of his fear that people were looking for them, Siong and his family were forced to move five times during their 13 years in France.4 Finally, fearing for his family's safety, Siong sent his wife and children to the United States in December 1990; he followed in February 1991.
After coming to the United States on tourist visas, Siong and his family overstayed their visas. In 1993, Siong filed an application for asylum. The former Immigration and Naturalization Service5 ("INS") denied the application and served
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Siong and his family with Orders to Show Cause in December 1993.
In 1996, Siong filed a new asylum application. On August 10, 1999, the IJ denied that application and ordered Siong and his family deported to France. The IJ concluded that Siong had firmly resettled in France, within the meaning of 8 C.F.R. § 208.15. The IJ acknowledged Siong's testimony regarding discrimination he experienced in France but stated that French authorities were not "deliberately discriminating against people of Laotian heritage."
The IJ further concluded that Siong did not have a well-founded fear of future persecution in France for purposes of eligibility for asylum from France. The IJ found that Siong and his wife had testified credibly regarding the written threats they received and the attacks on four of their acquaintances. Nonetheless, the IJ concluded that "there are no objective indications that respondent and his family will be persecuted in France by either the French government or by parties which the French government is either unwilling or unable to control," reasoning that Siong should raise the issue of political violence against Hmong refugees with French authorities.
Finally, the IJ addressed problems Siong experienced during the hearings with the four different interpreters, who "were unable to interpret precisely certain expressions" used by Siong to describe "Vietnamese Communists and Laotian Communist assassins." The IJ had submitted the tapes to the Language Services Unit of the Department of Justice, which concluded that the interpretation was competent. The IJ thus found that the interpretation was adequate. The IJ accordingly denied Siong's asylum request and ordered the Siongs deported to France. The IJ did not address the issue of withholding of deportation.6
The notice of appeal to the BIA was due on September 9, 1999. Siong's former counsel, Rhoda Wilkinson Domingo, did not file the notice of appeal until September 13, 1999. On November 5, 1999, the BIA dismissed the appeal as untimely.
On February 2, 2000, Siong filed a motion to reopen with the BIA, alleging that the notice of appeal was untimely because of the ineffective assistance of his former counsel. In September 2000, Siong filed "Supplemental Evidence in Support of Pending Motion to Reopen," submitting with it a notice from the National Visa Center referring to their preference category as "F4." According to Siong's new counsel, Stephen Scribner, this notice established that the Siongs were "beneficiaries of an approved visa petition and, more importantly, that immigrant visas are currently available to each of them." Scribner argued that the Siongs'"eligibility for a new form of relief from deportation will provide an alternative ground for reopening this case."
In November 2000, Siong filed "Additional Evidence of Eligibility for New Relief," stating that and the attached Visa Bulletin issued by the State Department confirmed that visas were available to the Siongs. The Siongs were apparently in the Family-Sponsored Preferences Fourth category, which is for brothers and sisters of adult citizens, based on the citizenship of Mrs. Siong's sister.
The BIA denied the motion to reopen. First, the Board stated that the motion was more properly characterized as a motion
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to reconsider and thus was untimely.7 Even if the motion were a timely-filed motion to reopen, the Board reasoned that it would be denied because Siong did not show prejudice resulting from Attorney Domingo's failure to file a timely appeal. The Board appeared to agree with the IJ's findings that Siong was firmly resettled in France and that he would not face persecution or torture if returned to France. Finally, the Board concluded that Siong failed to show that he was prejudiced by the "allegedly incompetent interpretation." Siong filed a timely petition for review.
The BIA's denial of a motion to reopen is reviewed for an abuse of discretion. Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003). "Where, as here, the BIA adopts the IJ's decision while adding its own reasons, we review both decisions." Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). The Board's factual determinations are reviewed for substantial evidence and must be upheld unless the evidence compels a contrary conclusion. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999).
Siong argues that the BIA incorrectly characterized his motion to reopen as a motion to reconsider. "Where the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed motions to reopen." Iturribarria v. INS, 321 F.3d 889, 891 (9th Cir.2003). The facts regarding Attorney Domingo's failure to file the notice of appeal obviously were not available to Siong at the time of the initial appeal that was dismissed as untimely. The BIA thus "abused its discretion when it misapplied its regulations to classify [Siong's] motion as a motion to reconsider." Id. at 897; see also Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004) (relying on Iturribarria to hold that the BIA "erred as a matter of law when it recharacterized Singh's motion to reopen as a motion for reconsideration").
Although the BIA erred in concluding that the motion was an untimely motion to reconsider, the Board went on to state that, even if the motion were a timely-filed motion to reopen, it would be denied. The BIA did not simply dismiss Siong's motion as untimely but addressed the merits of the motion to reopen. That error therefore did not prejudice Siong.
Siong correctly contends that he has complied with the procedural requirements for an ineffective...
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