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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 17-15245; 18-12162
________________________
Agency No. A 209-134-539
HAMID SOW,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 14, 2020)
Before WILSON and NEWSOM, Circuit Judges, and COOGLER, ∗ District Judge.
WILSON, Circuit Judge:
∗The Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
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Hamid Sow, a citizen of Guinea, seeks review of the Board of Immigration
Appeals’ (BIA) denial of his motion to remand based upon ineffective assistance
of counsel and motion to reopen based upon new evidence. After careful review
and with the benefit of oral argument, we conclude that the BIA abused its
discretion in denying Sow’s motion to remand based on ineffective assistance of
counsel. We therefore grant Sow’s petition for review, vacate the BIA’s decisions,
and remand to the BIA with instructions to remand to the IJ for reconsideration of
Sow’s asylum application. 1
I. Factual and Procedural Background
A. Underlying Facts
In December 2016, Sow entered the United States and immediately applied
for asylum based on his membership in a particular social group—the homosexual
community. His application for asylum alleged the following.
Sow was raised in Conakry, Guinea where he had to hide his sexuality
because of the stigma against homosexuals in his devout Muslim community. For
the same reason, he had to hide his relationship with a man named Alpha Oumar
Barry. When Sow’s sister discovered the true nature of Sow and Alpha’s 2
1
Because we are granting relief based on Sow’s ineffective assistance of counsel claim, we
decline to address his motion to reopen based on new evidence.
2
Multiple individuals involved in this case—none of whom are related—have the last name
Barry. We therefore refer to these individuals by their first names.
2
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relationship, Sow immediately fled his house for fear that his uncle, a prominent
Iman, would kill him. While he was in hiding, a friend informed Sow that his
family and other members of the community had tortured and then burned him
alive. His friend also reported that Sow’s uncle had instructed the community
members to, once found, either kill Sow or turn him into the police for failing his
family and the laws of Islam.
Sow fled to Morocco, where he intended to stay with a cousin. But by the
time he arrived at his cousin’s house, his cousin had learned of Sow’s sexuality.
As a result, he brutally beat Sow. A taxi driver found Sow and took him to a
hospital, but the hospital staff refused to treat Sow because of his sexuality. The
taxi driver then took him to a friend’s home. The driver’s friend cared for Sow for
nearly six months while he recovered from his injuries. He then helped Sow obtain
a Mexican visa.
Shortly after arriving in Mexico, Sow traveled to the United States. He
presented himself at the United States border on December 23, 2016, where he
informed an officer of his fear of returning to Guinea because he was a
homosexual.
B. Representation and Merits Hearing
While detained, Sow was in contact with two friends: Ibrahim Barry and
Aminata Diallo. Ibrahim reached out to an attorney, Joseph Gurian, on Sow’s
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behalf. Gurian agreed to represent Sow. Ibrahim and Diallo then began to gather
evidence for Gurian to use in support of Sow’s asylum application.
Shortly after Gurian agreed to represent Sow, Sow began calling Gurian.
Sow, who speaks only French, had to rely on other detainees to help him
communicate with Gurian, who speaks only English. After a couple unproductive
calls, Gurian informed Sow that he would secure a French interpreter. Gurian also
asked Sow to send him documents related to Sow’s case. Sow asked if Gurian
would meet with him at the detention center, but Gurian refused. Sow then sent
Gurian his asylum application and a statement detailing his fear of returning to
Guinea.
A few days later, Sow called Gurian and, again relying on other detainees to
translate, requested copies of the documents that Ibrahim and Diallo had collected
on his behalf. Sow did not receive any documents.3 During their next call, Sow
again requested access to the evidence so that he and Gurian could discuss his case.
Gurian told Sow that he would obtain an interpreter and call back at a particular
time so they could discuss his case. Gurian did not call at the arranged time.
Gurian later admitted that he missed the call because the interpreter cancelled.
3
Gurian later told Sow that he had indeed mailed the documents, but there is no evidence to
support this statement.
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Gurian eventually visited the detention center, but the visit lasted only thirty
minutes and there was no interpreter present. The only evidence that Sow was able
to review was an affidavit written by Sow’s aunt, Oumou Hawa Barry. Sow tried
to communicate that Oumou is forgetful and that she was unfamiliar with the
events leading to his displacement. He described her statement as “no good.” But
without a translator, Gurian did not fully understand Sow’s concerns. According
to Sow, Gurian “dismissed” him, told him the letter “was good,” and informed him
that he would “not get a chance to review the rest of the evidence.” Gurian then
gave Sow a questionnaire written in both English and French and asked him to
draft a new statement based on his answers.
Sow answered the questionnaire, relying on other detainees to translate his
responses to English. A few days later, Gurian picked up the statement, but did not
review it with Sow. Sow requested another meeting so he could review the
evidence. Gurian eventually agreed to meet with Sow once more before the merits
hearing. The meeting, again conducted without an interpreter, lasted only twenty-
five minutes. Gurian neither brought any of the evidence for Sow to review nor
discussed the substance of the case with Sow.
Sow and Gurian did not meet again until thirty minutes before the merits
hearing. Gurian again failed to bring an interpreter. During this meeting, Sow
finally had the opportunity to briefly review the two affidavits submitted by his
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friend, Djibril Barry. Sow tried to communicate to Gurian that the content of the
affidavits “did not match up with what happened” and that the dates of the same
events listed in Djibril’s two affidavits were inconsistent. But because there was
no interpreter present, the message was not properly relayed. Sow attempted to
express his concerns in English, telling Gurian “[t]his evidence is no good.” But
Gurian dismissed his concerns. Sow also stated that Gurian did not prepare him
for direct or cross-examination, and that he did not even know a government
lawyer would be present until the hearing began.
Before Sow’s merits hearing, Gurian submitted the following evidence: the
State Department’s 2016 Guinea Human Rights Report, a news article describing
lynchings targeting homosexual people in Conakry, two photographs allegedly
showing Alpha’s dead body, Diallo’s affidavit, and two affidavits each from
Djibril and Oumou.
At the beginning of the hearing, the Immigration Judge (IJ) noted that Sow
submitted two applications for asylum. He asked Gurian which application Sow
intended to rely on. Gurian responded that he did not know that Sow had
submitted two applications. When the IJ noted that the second was more detailed,
Gurian said that he “imagine[d]” that was the one Sow wanted to move forward
with.
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During his testimony, Sow detailed his experience in Guinea. He testified
that he and his homosexual friends were persistently persecuted, that his friend was
killed in 2009 for being homosexual, and that other homosexual friends had been
imprisoned. He said that he had been in a relationship with Alpha for six years and
that they were first persecuted for being homosexual in April 2015 when a
neighbor told the police that she saw them kissing. The police charged Sow with
engaging in homosexual activity, which is illegal in Guinea, and jailed him. While
visiting him in jail, his uncle beat Sow. After two months in jail, Sow swore to his
uncle that he was not homosexual, and his uncle eventually secured his release.
Sow further testified that in May 2016, Sow’s sister discovered explicit
pictures of Alpha and Sow, exposing their relationship. Sow fled. He later learned
that his family and members of the community apprehended Alpha, tortured him,
and then burned him alive.
On cross-examination, the government asked Sow to explain inconsistencies
in Djibril’s two affidavits.4 Sow responded that he could not explain the
inconsistencies because he had not had an opportunity to read the affidavits.
4
The inconsistencies were glaring. In one affidavit, Djibril’s account of Alpha’s death tracked
Sow’s account. But the other affidavit describes a wholly separate incident. Djibril said Alpha
was killed months after Sow’s family discovered the true nature of Alpha and Sow’s
relationship. According to this second affidavit, Alpha died after a man punched him while he
and Sow were walking in the streets of Conakry.
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Gurian stated that he believed there were two individuals named Djibril Barry.
Sow had to correct Gurian and confirm there was only one.
In his oral decision, the IJ said that he “unfortunately” had to deny Sow’s
application based solely on an adverse credibility finding. In coming to this
conclusion, the IJ specifically highlighted the inconsistencies in Djibril’s and
Oumou’s statements. He noted that, if it were true that Sow were a homosexual,
then he “clearly should get” asylum. Likewise, he said “if [Sow was] telling the
truth I would in a heartbeat grant him asylum.”
C. Merits Appeal and Motion to Remand
Sow, represented by new counsel, appealed to the BIA. He argued that the
IJ erred in failing to assess Sow’s well-founded fear of future persecution. Sow
also filed a motion to remand based on ineffective assistance of counsel,5 which
included several attachments. For example, he attached an affidavit from Djibril
explaining the inconsistencies in his previous affidavits, both of which Gurian
submitted to the IJ. It stated that Djibril had intended to send only his second
affidavit and that the earlier version had been written by his younger brother, who
had helped write the statement while Djibril was hospitalized. When Djibril was
discharged, he noticed the mistakes and sent a corrected affidavit. Djibril also
5
Sow styled his motion as a “motion to reopen and remand,” but we construe it as a motion to
remand because he filed the motion while his appeal to the BIA was pending. See
8 C.F.R.
§ 1241.1.
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stated that he had tried to help Oumou draft her affidavit. He characterized Oumou
as “not very well” and noted that she “forgets things.”
Sow also attached an affidavit from Ibrahim. Ibrahim stated that, when he
was gathering evidence, he noticed inconsistencies in the affidavits and informed
Gurian of those inconsistencies. Gurian dismissed his concerns. Despite the
warning, Ibrahim thought Gurian seemed surprised about the inconsistencies when
they spoke after the merits hearing. When Ibrahim asked whether Gurian had even
read the evidence before the hearing, Gurian said he had not had much time to
review the documents.
Sow also attached an email chain between Ibrahim and Gurian from March
2017. In the emails, Ibrahim offered to serve as the interpreter and asked Gurian
the dates and times he needed to be available. Gurian never responded with a
proposed date.
The BIA denied Sow’s motion to remand. It held that the IJ did not clearly
err in making an adverse credibility determination and the record did not establish
that Sow was entitled to relief “independent of his discredited claim of past harm.”
It also denied Sow’s ineffective assistance of counsel claim, reasoning that Gurian
“reasonably relied on, and submitted the evidence provided by, the respondent and
his friends.” According to the BIA, “submitting evidence that [Sow] was involved
in collecting” did not “render[] [Gurian’s] performance ineffective.”
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D. Motion to Reopen
Two months later, Sow filed a motion to reopen based on new evidence. He
attached a Guinean arrest warrant that was issued on June 14, 2017. The warrant
states that Sow was caught having “carnal relations” with a friend in his Conakry
home and his friend was then “beaten, burned, and immediately surrendered of his
spirit.” The warrant also states that Sow’s family requested that a warrant be
issued for his “acts of homosexuality, and of indecent assault on the good
traditions that harm the reputation of an African family” in violation of Articles
267, 271, and 277 of the Guinean Criminal Code. Sow also attached an affidavit
prepared by Ibrahima Sory Barry, a member of the Guinean National Police Force.
Ibrahima verified the validity of the warrant and stated that if Sow returned to
Guinea, it would be his duty to arrest him.
The BIA denied Sow’s motion to reopen, reasoning that “[t]he new evidence
submitted does not address the grounds of adverse credibility finding [sic], and
therefore does not show that a different outcome may be warranted.”
Sow timely appealed both the BIA’s denial of his motion to remand based
on ineffective assistance of counsel and its denial of his motion to reopen based on
new evidence. 6 This is his consolidated appeal.
6
Sow also argues that “[i]f [we do] not grant relief on Mr. Sow’s ineffective assistance claim,
[we] should nonetheless remand for the more limited purpose of requiring the BIA to assess Mr.
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II. Ineffective Assistance of Counsel
Sow contends that the BIA erred in denying his motion to remand based on
ineffective assistance of counsel. He argues that that his counsel acted deficiently
by not (1) communicating with him about the substance of his case; (2) allowing
Sow to review the evidence despite Sow’s repeated requests; and/or (3) adequately
preparing for the merits hearing. Sow further maintains that these deficient acts
were prejudicial because, if Gurian had fulfilled his basic obligations, he would not
have submitted the flawed affidavits that were the basis for the adverse credibility
finding. The government did not address the ineffective assistance of counsel
claim.
Where, as here, a motion to remand seeks additional proceedings to
introduce additional evidence, we apply the same standard of review as a motion to
reopen. See Najjar v. Ashcroft,
257 F.3d 1262, 1301 (11th Cir. 2001). We review
the BIA’s denial of a motion to reopen for abuse of discretion, limiting our review
to “determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Ali v. U.S. Att’y
Gen.,
443 F.3d 804, 808 (11th Cir. 2006) (per curiam) (quotation omitted). Where,
as here, the BIA adopted the IJ’s decision or reasoning, we review both the BIA’s
Sow’s fear of future persecution.” Because we remand based on Sow’s ineffective assistance
claim, we need not consider this alternative ground for relief.
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and the IJ’s decisions. See Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256 (11th Cir.
2009).
A petitioner in removal proceedings is entitled “to effective assistance of
counsel where counsel has been obtained.” Dakane v. U.S. Att’y Gen.,
399 F.3d
1269, 1273 (11th Cir. 2005) (per curiam) (quotation omitted). To establish
ineffective assistance of counsel, the petitioner must show that (1) his counsel’s
performance was deficient and (2) counsel’s deficiencies prejudiced his case.
Id.
at 1273–74. To establish deficient performance, the petitioner mush show that his
counsel’s performance “was deficient to the point that it impinged upon the
fundamental fairness of the hearing such that the alien was unable to reasonably
present” his case.
Id. (quotation omitted). And to show prejudice, the petitioner
must demonstrate that the performance of counsel was “so inadequate that there is
a reasonable probability that but for the attorney’s error, the outcome of the
proceedings would have been different.”
Id. at 1274 (citation omitted).
Pursuant to federal regulations, an immigration practitioner must maintain
communication with the client throughout the duration of the client-practitioner
relationship and must take reasonable steps to do so “in a language that the client
understands.”
8 C.F.R. § 1003.102(r). A practitioner’s responsibilities in
maintaining such communication include “[p]romptly comply[ing] with reasonable
requests for information” and reasonable consultation “with the client about the
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means by which the client’s objectives are to be accomplished.”
Id. A practitioner
must “meet with the client sufficiently in advance of a hearing or other matter to
ensure adequate preparation of the client’s case.” Id.; see also Figeroa v. I.N.S.,
886 F.2d 76, 79 (4th Cir. 1989) (“At the very least, whether in a trial, an
administrative proceeding, or settlement, plea or business related negotiations, an
attorney is ethically bound to act in the best interests of his client, and to follow his
client's wishes.” (citing ABA Code of Professional Responsibility, Canons 6, 7 and
EC7–1)).
We acknowledge the highly deferential standard of review that the BIA is
due. But the unique facts of Sow’s case present the rare situation where we must
find that the BIA was arbitrary and capricious in exercising its discretion. Ali,
443
F.3d at 808.
First, Sow established deficient performance. The BIA reasoned that
Gurian’s performance was not deficient because he reasonably relied on evidence
that Sow was directly involved in gathering. But Sow was not involved in
gathering evidence. Because Sow was detained, his involvement was limited to
reviewing evidence that Ibrahim, Diallo, and Gurian collected on his behalf. Sow
repeatedly sought to review and correct the mounting evidence. But his efforts
were unsuccessful, as Gurian refused to allow Sow access. When Sow finally had
the opportunity to review some of the evidence, he attempted to communicate his
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concerns to Gurian. But Gurian either did not listen, or could not understand Sow,
no doubt due to the language barrier and lack of an interpreter. In fact, Gurian
failed to obtain an interpreter for any of their meetings or phone conversations, a
sanctionable offense. See
8 C.F.R. § 1003.102. As a result, Sow was unable to
communicate with his counsel about the substance of his case.
Gurian also failed to familiarize himself with the case. For example, during
the merits hearing, Gurian was unaware of basic facts like how many asylum
applications Sow had submitted and how many individuals named Djibril Barry
were involved in the case. And because of Gurian’s failure to review the evidence,
he submitted contradictory affidavits. The evidence was not only internally
inconsistent—he submitted multiple, contradictory affidavits prepared by Djibril
Barry—but it was also inconsistent with his own client’s account. As the Third
Circuit has said in a similar context, “evidentiary inconsistencies . . . would have
been avoided by competent counsel.” Fadiga v. U.S. Att’y Gen.,
488 F.3d 142,
162 (3d Cir. 2007). Taken together, Gurian’s many deficient acts “impinged upon
the fundamental fairness of the hearing such that [Sow] was unable to reasonably
present” his case. Dakane,
399 F.3d at 1273–74 (quotation omitted).
Second, Sow established that counsel’s deficiencies prejudiced his case.
The IJ’s denial of asylum was based entirely on the inconsistencies in the evidence,
and competent counsel would have realized that the affidavits included
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inaccuracies and never would have submitted them. The IJ further stated that, if
Sow was “credible, then the Court will believe that he is gay and therefore,
suffered in his country on account of being gay . . . so if he had been persecuted on
account of his sexual orientation then he should, in fact, be given asylum based
upon past persecution.” We therefore do not need to speculate as to whether the
outcome may have been different if Gurian had performed adequately. The IJ’s
uniquely direct statement confirms that it would have. Because the IJ explicitly
said that he would have granted Sow’s application but for the evidentiary
inconsistencies, we have no trouble concluding that there is a reasonable
probability that the outcome of Sow’s merits hearing would have been different
with adequate assistance of counsel. See
id. at 1274.
Accordingly, we grant Sow’s petition, vacate the BIA’s decision, and
remand to the BIA with instructions to remand to the IJ for reconsideration of
Sow’s asylum application.
PETITION GRANTED.
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