Yeghiazaryan v. Gonzales
| Decision Date | 14 December 2005 |
| Docket Number | No. 03-72159.,03-72159. |
| Citation | 431 F.3d 678 |
| Parties | Sergey YEGHIAZARYAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Aggie R. Hoffman, Shivani T. Mehta, Law Offices of Aggie R. Hoffman, Los Angeles, CA, for the petitioner-appellant.
Peter D. Keisler, Assistant Attorney General; Terri J. Scadron, Assistant Director; Jennifer A. Parker, Attorney; Jennifer Levings, Attorney; Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington DC, for the respondent-appellee.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before: KLEINFELD and FISHER, Circuit Judges, and SHADUR, Senior District Judge.*
Sergey Yeghiazaryan ("Yeghiazaryan") challenges the decision of the Board of Immigration Appeals ("BIA") denying his motion for reconsideration of the BIA's earlier denial of his motion to reopen. Yeghiazaryan had sought reopening of the BIA's decision dismissing his appeal from the denial by an Immigration Judge ("IJ") of his asylum application and of the withholding of removal. Because the BIA's denial of Yeghiazaryan's motion to reconsider was an abuse of discretion and a violation of due process, we grant Yeghiazaryan's petition for review and remand for the substantive consideration of his motion to reopen.
Yeghiazaryan, a citizen of Armenia, was born in Siberia to parents exiled by the government of the former Soviet Union. On November 11, 1995 Yeghiazaryan entered the United States with a Soviet passport and a B-2 visa. One and one-half months later, on December 29, 1995, Yeghiazaryan filed an application for asylum (I-589) with the Immigration and Naturalization Service ("INS"). Yeghiazaryan could not speak or understand English, so he enlisted the help of a lay person, Ashot Serenikimyan ("Serenikimyan"), to complete his I-589 application. Because Serenikimyan never translated the I-589 application for him, Yeghiazaryan was unaware of the facts that he needed to include in the I-589 and hence failed to communicate those facts to Serenikimyan for inclusion.
At Yeghiazaryan's asylum interview, the asylum officer found his testimony to be "consistent, detailed, and plausible in light of country conditions . . . [and] therefore . . . credible." According to the officer, although Yeghiazaryan presented evidence indicating that his "fundamental human rights to security of person, liberty, and freedom from arbitrary arrest were violated," the evidence did not show that these abuses were perpetrated "on account of any statutory grounds." On May 20, 1996 the matter was referred to the IJ and a Notice To Appear for Hearing was issued.
Yeghiazaryan retained attorney Azita Avedissian ("Avedissian") to represent him at the IJ hearing. Avedissian not only failed to prepare Yeghiazaryan for the hearing but was also unprepared herself on multiple occasions before the IJ. In one instance Avedissian instructed Yeghiazaryan to lie and tell the IJ that he was sick so that Avedissian could secure a continuance on Yeghiazaryan's case, and Yeghiazaryan followed his lawyer's advice—he lied. Despite numerous continuances, Avedissian was still unprepared once the hearing took place—thus she neglected to translate into English critical documents proving imputed political opinion. Instead Yeghiazaryan had to try to introduce those documents himself as best he could.
At the hearing the IJ found that Yeghiazaryan was not entitled to asylum, basing the denial largely on what the IJ believed to be the "most significant testimony": Yeghiazaryan's statement, as translated, that if he returned to Armenia he would "not [be] in danger, but my family would be humiliated." As the IJ explained, prospective humiliation is not sufficient to meet the statutory criteria for asylum: "a well-founded fear of persecution or a clear probability of persecution." Unfortunately that analysis was based on what has now been labeled as a serious mistranslation by the interpreter of Yeghiazaryan's actual statement. Noune Oganessian ("Oganessian"), an official court interpreter later hired by Yeghiazaryan's third lawyer to help in preparation of his motion to reopen, has explained that Yeghiazaryan really said that he would "[n]ot only [be] in danger, but my family would be humiliated" (emphasis added).
After the hearing Avedissian notified Yeghiazaryan that she would not represent him on appeal. Yeghiazaryan then sought to retain Alan Harris. Although Yeghiazaryan believed that he was signing a contract to enlist Harris's services, the contract (which was never translated into Armenian or Russian) in fact provided for the services of Harris's wife Paula. Yeghiazaryan was also unaware that Paula Harris, despite her retainer as his attorney, filed a purported pro se brief in Yeghiazaryan's name. That eight-page brief included only boilerplate recitations of the law and contained just two paragraphs that referred to the particular facts and merits of Yeghiazaryan's case.
On November 27, 2002 the BIA affirmed without opinion the IJ's denial of asylum, a ruling that could be the subject of a motion to reopen filed within 90 days. Confronted by another loss due to ineffective assistance by counsel, Yeghiazaryan then hired a third lawyer, Aggie Hoffman ("Hoffman"). On December 23, 2002 Hoffman filed a skeletal motion to reopen on Yeghiazaryan's behalf.1 That motion identified four grounds for reopening: (1) ineffective assistance of counsel, (2) an ineffective interpreter, (3) new and material evidence that had previously been unavailable and (4) other evidence not brought to the attention of the IJ because of the ineffective assistance of counsel. And having done so, the motion notified the BIA that Yeghiazaryan would "submit a brief, declarations, and fully documented basis of the grounds of this [motion to reopen], within the 90 day time period."
In addition to handling the motion to reopen, Hoffman concurrently prepared an application for stay of removal (Form I-246).2 Yeghiazaryan was scheduled to be deported on December 27, 2002, when the BIA's dismissal of his appeal became final, and the December 23 filing of the skeletal motion to reopen was an important adjunct of the application for a stay of deportation. In support of the application for stay of removal, Hoffman provided the INS with a copy of complaints that had been filed with the California State Bar against Avedissian and the Harrisses and a receipt of the filing fee paid for the motion to reopen. According to Yeghiazaryan, in considering an I-246 application agents from Immigration and Customs Enforcement typically "only look for a filing fee from the BIA as evidence that further review is pending," so that a stay is warranted. On February 5, 2003 Yeghiazaryan's application for stay of removal was granted.
Just one week later, on February 12, 2003, the BIA summarily dismissed Yeghiazaryan's motion to reopen for its failure to provide supporting evidence. At the time of that dismissal there were still 14 days left in the 90-day window for Yeghiazaryan to file such evidence.
On March 14, 2003 attorney Hoffman filed a motion on Yeghiazaryan's behalf for reconsideration of the BIA's denial of the motion to reopen. Because the BIA had denied the motion to reopen before Hoffman could provide the brief and evidence to support it, she included those materials in the motion to reconsider. Similarly, Hoffman, who had intended to file her own declaration with the evidence in support of the motion to reopen, included her declaration with the motion to reconsider. Hoffman's declaration explained that the original motion to reopen was skeletal because she had to file something to stay Yeghiazaryan's deportation, and the limited nature of that filing was due to the facts that she had only recently been retained, that she was unable to obtain Yeghiazaryan's documents from Avedissian and Harris because of the holiday season and that she had difficulty finding a qualified and certified Armenian translator.
On May 23, 2003 the BIA denied Yeghiazaryan's motion to reconsider. Explaining the denial, the BIA stated:
At the time the respondent's motion to reopen was filed with the Board, it was not supported by evidence that established that reopening was warranted. The Board was therefore correct to deny it. There is no language in the regulation that requires the Board to hold in abeyance motions to reopen until the expiration of the 90-day period allowed for filing.
Yeghiazaryan (still represented by Hoffman) argues before us that the denial by the BIA of his motion to reconsider was an abuse of discretion and violation of due process. Additionally he claims that he was denied due process when his petitions for appeal and for a motion to reopen were reviewed by a single BIA member. We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
We review the BIA's denial of a motion to reopen for abuse of discretion (see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005)). Such an abuse of discretion exists when the BIA acts "arbitrarily, irrationally or contrary to law" (id., reconfirming uniform earlier caselaw). Questions of law are reviewed de novo, with deference generally afforded to the BIA's interpretation of the immigration laws "unless that interpretation is contrary to the plain and sensible meaning of the statute" (Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004)). Claims of due process violations are also reviewed de novo (id.).
In filing a motion to reconsider, the petitioner must "specify[] the errors of fact or law in the prior Board decision . . ." (8 C.F.R. § 1003.2(b)(1)).3 In this instance Yeghiazaryan contends that the BIA erred in denying his ...
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