Barry v. Gonzales ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AISSATOU BARRY, 
Petitioner,
v.
 No. 05-1219
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A95-902-551)
Argued: March 15, 2006
Decided: April 19, 2006
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Petition for review denied and judgment affirmed by published opin-
ion. Judge Gregory wrote the opinion, in which Judge Michael and
Judge King joined.
COUNSEL
ARGUED: Danielle L. C. Beach-Oswald, NOTO & OSWALD, P.C.,
Washington, D.C., for Petitioner. Kristin Kay Edison, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-
gation, Washington, D.C., for Respondent. ON BRIEF: Peter D.
Keisler, Assistant Attorney General, Civil Division, Michelle E. Gor-
den, Senior Litigation Counsel, UNITED STATES DEPARTMENT
2 BARRY v. GONZALES
OF JUSTICE, Office of Immigration Litigation, Washington, D.C.,
for Respondent.
OPINION
GREGORY, Circuit Judge:
Aissatou Barry, on behalf of herself and her six-year-old daughter,
petitions for review of the Board of Immigration Appeals’ ("BIA")
denial of her motion to reopen. Because Barry relies on evidence that
was available in her initial deportation proceeding, and because Barry
did not comply with the requirements of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988), in asserting her ineffective assistance of
counsel claim, we conclude that the BIA did not abuse its discretion
in denying her motion. Accordingly, we deny her petition.
I.
Barry and her infant daughter, natives and citizens of the Republic
of Guinea ("Guinea"), entered the United States in September 2001
with authorization to remain here for no longer than six months. In
June 2002, Barry filed an application for asylum with the Immigration
and Naturalization Service ("INS") based on political persecution.1
Subsequently, the INS served Barry with a Notice to Appear indicat-
ing that she was subject to removal under section 237(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), for
remaining in the United States beyond the six months she had been
permitted.
In March 2003, Barry appeared before an immigration judge and
conceded removability. At that time, Barry applied for asylum, with-
holding of removal, protection under the Convention Against Torture,
1
By operation of the Homeland Security Act, Pub. L. No. 107-296, 116
Stat. 2135 (2002), the INS ceased to exist as an independent agency
within the Department of Justice. The service and functions of the former
INS were transferred to the Department of Homeland Security’s U.S.
Citizenship and Immigration Services.
BARRY v. GONZALES 3
and voluntary departure. Specifically, Barry alleged that she and her
family were members of an opposition political party and had been
subjected to political persecution. The immigration judge denied all
of Barry’s applications on the grounds that she had not met her bur-
den of proving past persecution or a well founded fear of future perse-
cution. Accordingly, the immigration judge ordered Barry and her
daughter removed to Guinea. Barry did not appeal this decision to the
BIA.
In April 2003, Barry filed a motion to have the immigration judge
reconsider her previous ruling. The immigration judge denied this
motion, concluding that Barry had not demonstrated any errors of law
or fact. Barry appealed this decision to the BIA, and the BIA adopted
and affirmed the immigration judge’s denial. Barry then filed a timely
petition for review in this court, which we subsequently denied. See
Barry v. Gonzales, 124 Fed. Appx. 821 (4th Cir. Apr. 5, 2005)
(unpublished).
On November 1, 2004, Barry, on behalf of herself and her daugh-
ter, filed a motion to reopen her proceedings with the BIA in order
to reapply for asylum, withholding of removal, as well as relief under
the Convention Against Torture. In support of this motion, Barry
essentially alleged that her prior counsel’s ineffective assistance pre-
vented her from presenting evidence of female genital mutilation
("FGM") during her initial removal proceedings. Specifically, Barry
asserted that her prior counsel had failed to discover that she had
undergone FGM; that the practice of FGM was widespread in Guinea;
and that her daughter would likely be forced to undergo FGM if they
were removed to Guinea. Barry attached the following documents to
her motion to reopen: (1) a personal affidavit describing her experi-
ence as a victim of FGM; (2) an affidavit from Barry’s current coun-
sel, who attested that she, and not previous counsel, had discovered
that Barry had undergone FGM; (3) an unnotarized affidavit from a
physician confirming that Barry had undergone FGM; and (4) docu-
ments from the U.S. Department of State and Amnesty International
discussing the widespread practice of FGM in Guinea.
By opinion dated February 2, 2005, the BIA denied Barry’s motion
to reopen. In so doing, the BIA first noted that under 8 C.F.R.
§ 1003.2, motions to reopen must be supported by new facts and sup-
4 BARRY v. GONZALES
ported by affidavits and other evidentiary material. Further, the BIA
recognized that a motion to reopen shall not be granted unless the evi-
dence offered in support thereof was not available and could not have
been discovered or presented at the initial hearing. To the extent that
the FGM evidence had been available during the initial asylum pro-
ceedings, the BIA concluded that Barry had not satisfied the require-
ments for reopening under the regulation.
Since Barry had also argued that she should not be penalized for
her previous counsel’s failure to discover and present the FGM evi-
dence, the BIA determined that Barry had asserted ineffective assis-
tance of counsel as an alternative basis for her motion to reopen.
Accordingly, the BIA concluded that it needed to assess whether
Barry had satisfied the requirements for ineffective assistance of
counsel claims under Lozada. Concluding that Barry had not satisfied
the three-prong test set forth in Lozada, the BIA declined to reopen
the proceedings based on Barry’s allegation of ineffective assistance.
Barry filed a timely petition for review.
II.
In this appeal, Barry essentially raises two arguments. First, Barry
contends that the BIA abused its discretion in denying her motion to
reopen, where (1) she substantially complied with the Lozada require-
ments; and (2) her prior counsel’s ineffectiveness was apparent. Sec-
ond, Barry submits that because she presented material evidence that
was not available and could not be discovered or presented during the
initial proceedings, the BIA abused its discretion in denying her
motion to reopen under 8 C.F.R. § 1003.2(c).
To the extent that Barry challenges the BIA’s denial of her motion
to reopen, we review for abuse of discretion. INS v. Doherty, 502 U.S.
314, 323-24 (1992); Stewart v. INS, 181 F.3d 587, 595 (4th Cir.
1999). The BIA’s denial of a motion to reopen is reviewed with
extreme deference, given that motions to reopen "are disfavored . . .
[because] every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States." Id. at 596 (inter-
nal quotation marks omitted). Thus, we will reverse the BIA’s deci-
sion for abuse of discretion only if it is "arbitrary, capricious, or
BARRY v. GONZALES 5
contrary to law." Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
2002).
A.
We are compelled to conclude that the BIA did not abuse its discre-
tion in denying the motion to reopen on the basis of ineffective assis-
tance of counsel, because Barry failed to comply substantially with
the Lozada requirements. In reviewing the BIA’s denial of Barry’s
motion to reopen, we recognize as an initial matter that FGM consti-
tutes persecution within the meaning of the Immigration and Nation-
ality Act, 8 U.S.C. § 1101(a)(42)(A).2 See Mohammed v. Gonzales,
400 F.3d 785, 795 (9th Cir. 2005) ("[P]ersecution in the form of
female genital mutilation is similar to forced sterilization and, like
that other persecutory technique, must be considered a continuing
harm that renders a petitioner eligible for asylum, without more.");
Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004) ("Forced female
genital mutilation involves the infliction of grave harm constituting
persecution on account of membership in a particular social group
that can form the basis of a successful claim for asylum.); Abankwah
v. INS, 185 F.3d 18, 23 (2d Cir. 1999) ("That FGM involves the
infliction of grave harm constituting persecution under Section
101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994), is not
disputed here."). Thus, to the extent that Barry presented credible evi-
dence that she was subjected to FGM, and since the Attorney General
does not contest this evidence or the fact that Barry’s daughter will
likely be subject to FGM if she is removed to Guinea, Barry has made
out a prima facie case of persecution that would have entitled her to
2
That statute provides in pertinent part as follows:
The term refugee means (A) any person who is outside any
country of such person’s nationality or, in the case of a person
having no nationality, is outside any country in which such per-
son last habitually resided, and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or herself
of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion[.]
8 U.S.C. § 1101(a)(42).
6 BARRY v. GONZALES
asylum, had her prior counsel discovered and presented this evidence
during the initial removal proceeding. Because of her prior counsel’s
alleged ineffectiveness, Barry only presented this evidence for the
first time in support of her motion to reopen. Accordingly, our power
to grant relief is significantly circumscribed.
Under an abuse of discretion standard, we only review the merits
of the BIA’s denial of a motion to reopen on the basis of ineffective
assistance of counsel where the alien has complied with the reason-
able requirements set forth by the BIA in Lozada. See Stewart, 181
F.3d at 596 (4th Cir. 1999) ("Because Stewart failed properly to make
a claim of ineffective assistance of counsel [under Lozada], this Court
cannot consider the claim."). Under Lozada, an alien asserting inef-
fective assistance of counsel must (1) provide an affidavit describing
her agreement with counsel; (2) inform counsel of the allegation
against her and provide her with an opportunity to respond; and (3)
indicate whether a complaint has been filed with the appropriate disci-
plinary authorities, and if one has not been filed, explain why not.
Stewart, 181 F.3d at 596 n. 9 (citing Matter of Lozada, 19 I. & N. at
639).
The BIA justifies these requirements as a means for "assessing the
substantial number of claims of ineffective assistance of counsel that
come before [it]." Lozada, 19 I. & N. at 639. Further, the BIA notes
that "[w]here essential information is lacking, it is impossible to eval-
uate the substance of such claim." Id. With respect to the third
requirement, indicating whether a complaint has been filed, the BIA
has explained that it is to protect against collusion between petitioners
and their counsel to achieve delay. See Rivera-Claros, 21 I. & N. Dec.
599, 604-05 (BIA 1996).
As many of our sister circuits have recognized, strict compliance
with Lozada is not always required. See Jian Yun Zheng v. Ashcroft,
409 F.3d 43, 46 (2d Cir. 2005) ("[R]eview on the merits may be con-
ditioned on substantial compliance with the reasonable requirements
set forth in Lozada."); Dakane v. U.S. Att’y Gen., 399 F.3d 1269,
1272 n.3 (11th Cir. 2005) ("A petitioner claiming ineffective assis-
tance of counsel in an immigration proceeding must demonstrate sub-
stantial compliance with the Lozada requirements . . . ."); Xu Yong Lu
v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001) ("There are inherent
BARRY v. GONZALES 7
dangers, however, in applying a strict, formulaic interpretation of
Lozada."); Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000)
("While the requirements of Lozada are generally reasonable, they
need not be rigidly enforced where their purpose is fully served by
other means.").
Thus, although Lozada provides a useful framework for assessing
ineffective assistance claims, an alien’s failure to satisfy all three
requirements does not preclude appellate court review in every case.
We will reach the merits of an ineffective assistance of counsel claim
where the alien substantially complies with the Lozada requirements,
such that the BIA could have ascertained that the claim was not frivo-
lous and otherwise asserted to delay deportation. However, an alien
who fails to satisfy any of the three Lozada requirements will rarely,
if ever, be in substantial compliance.
After reviewing the record in this case, we conclude that Barry did
not substantially comply with the Lozada requirements. With respect
to the first requirement, Barry failed to submit an affidavit demon-
strating the scope of her agreement with counsel. Thus, because Barry
did not put forth any evidence regarding her discussions with counsel
and counsel’s concomitant assurances to her, the BIA had no way of
determining whether Barry’s prior counsel’s representation fell below
the requisite standard.
As to the second requirement, there is no evidence that Barry noti-
fied her prior counsel of the allegations or provided counsel with an
opportunity to respond while the motion to reopen was pending
before the BIA. Although Barry points this Court to a letter in which
her prior counsel responded to the general allegation that she had
been ineffective in her representation, this letter was written six
months after the BIA denied the motion to reopen. Thus, because this
letter was never presented to the BIA, it is not part of the certified
administrative record, and we cannot consider it. See Farrokhi v. INS,
900 F.2d 697, 700 (4th Cir. 1990).
Finally, with respect to the third requirement, Barry’s filing with
the BIA did not address whether or not she had lodged a disciplinary
complaint against her prior counsel. Although Barry now contends
8 BARRY v. GONZALES
that she had initially drawn up a complaint against her prior counsel
but ultimately decided not to file it, she did not so notify the BIA.
In sum, because Barry failed to satisfy any of the Lozada require-
ments and otherwise failed to put forth any evidence before the BIA
demonstrating that she had a valid ineffective assistance of counsel
claim, we must conclude that the BIA did not abuse its discretion in
denying the motion to reopen. Accordingly, we cannot review the
merits of Barry’s ineffective assistance of counsel claim.
B.
Turning to the BIA’s alternative basis for denying Barry’s motion
to reopen—that her petition did not comport with the requirements of
8 C.F.R. § 1003.2(c)—we conclude that the BIA did not abuse its dis-
cretion. Pursuant to 8 C.F.R. § 1003.2(c), a motion to reopen "shall
not be granted unless it appears to the BIA that evidence sought to be
offered is material and was not available and could not have been dis-
covered or presented at the former hearing." Id. § 1003.2(c). Although
it was undisputed that Barry had been subjected to FGM in Guinea
many years before she came to the United States, and that Barry’s
daughter would likely be subjected to FGM if she is returned to
Guinea, the BIA correctly determined that the FGM evidence had
been available and could have been discovered or presented during
the initial deportation proceedings. Accordingly, the BIA correctly
concluded that it had no authority to grant Barry’s motion under the
regulation.
III.
For the foregoing reasons, Barry’s petition for review is denied and
the BIA’s Order denying Barry’s motion to reopen deportation pro-
ceedings is affirmed.
PETITION FOR REVIEW
DENIED AND JUDGMENT
AFFIRMED