Samir Kada v. William P. Barr ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAMIR YOUSIF KADA, ┐
Petitioner, │
│
> Nos. 18-4038/19-3218
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 043 507 287.
Decided and Filed: January 10, 2020
Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan, for Petitioner.
Brendan P. Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. In this consolidated appeal, Petitioner Samir Kada
seeks review of orders from the Board of Immigration Appeals (BIA) denying his motions to
reopen. Kada argues that his due process rights were violated due to his attorney’s ineffective
assistance. In the alternative, he claims that his attorney’s serious health problems turned the
removal proceedings into a sham, violating his due process rights. For the following reasons, we
GRANT Kada’s petition for review in Case No. 19-3218 based on his ineffective assistance of
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counsel claim. We VACATE the BIA’s order denying his second motion to reopen, and
REMAND for further proceedings in that case.
I. BACKGROUND
Kada is a Chaldean Christian from Iraq. He and his family immigrated to the United
States when he was twelve as Lawful Permanent Residents. In 2017, Kada was convicted of
several crimes, including assault with a deadly weapon and carrying a concealed weapon in
violation of Michigan law. The Department of Homeland Security placed him in removal
proceedings on March 27, 2018, alleging removability under 8 U.S.C. § 1227(a)(2)(C), based on
his firearms convictions under Michigan law.
Attorney Richard Kent initially represented Kada in the removal proceedings. At a
hearing on April 17, 2018, Kada informed an immigration judge (IJ) that he would apply for
cancellation of removal, withholding of removal, and protection under the Convention Against
Torture (CAT). The judge set the following schedule: a May 1 deadline for Kada to submit an
administrative brief regarding his claim that his convictions were not disqualifying aggravated
felonies or particularly serious crimes, a May 8 deadline to file his application for relief, and a
May 15 deadline for the Government to respond.
Kent filed an untimely brief on Kada’s behalf on May 3, conceding that Kada’s
convictions were aggravated felonies disqualifying him from asylum and cancellation of removal
but claiming that Kada remained eligible for withholding of removal under the CAT because the
convictions were not particularly serious crimes. The brief acknowledged Kada’s upcoming
deadline to file his applications with the court, noting “Respondent has application for relief in
process for Withholding, [and] his next Individual Calendar court date is to address that issue.”
Kent failed, however, to file Kada’s application for relief under the CAT or to request an
extension of time by the May 8 filing deadline. After the Government responded to Kada’s brief,
on May 16, 2018, the IJ issued a written decision determining that Kada was removable as
charged, deeming his applications for relief abandoned, and ordering him to be removed to Iraq.
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A. First Motion to Reopen
Kent filed a timely motion to reconsider and reopen. He asserted that his ongoing serious
health problems prevented him from meeting the deadlines. Kent was hospitalized from
February 5 through 11 for a serious illness and experienced a “slow relapse,” which ultimately
resulted in multiple hospitalizations throughout May and into June, specifically May 10–17; 18–
22; 27–29; and June 5. Kent attached his medical records and included Kada’s CAT application,
evidence, and witness list.
In the application for relief under the CAT attached to the motion to reopen, Kada
explained that he had five uncles who “disappeared under Saddam Hussein,” and other members
of his family “were kidnapped by ISIS and held hostage for money.” He alleged that he is
“completely Americanized,” knows “little Arabic” and “lack[s] any cultural education as to life
in Iraq.” He emphasized his status as a Chaldean Christian, explaining “The US pullout led to
ISIS domination of the Chaldean regions of Iraq, and that was followed by their being destroyed
by the Shia dominated Popular Mobilization Forces [PMF], who are systematically oppressing
Iraqi Christians just as badly as ISIS did.” Kada also submitted country conditions reports
regarding the sectarian conflict in Iraq, including evidence that internal relocation is not available
in Iraq and should not be used as a basis to deny a stay of removal. Kada also argued that, if he
were not tortured because of his status as a Chaldean Christian, he would be singled out for
torture by Iraqi authorities because of his criminal record and status as a deportee from the
United States.
The Government opposed Kada’s motion to reconsider and reopen, noting that Kent’s
medical records related to periods in February, before the removal proceedings commenced, and
in May, after the missed May 8 deadline. Kent did not respond with further information about
his health problems or additional explanation for the missed deadline. On June 19, 2018, the IJ
denied Kada’s motion to reopen based on its finding that Kent had failed to establish his
incapacity on or shortly before the May 8 filing deadline. The court noted that Kent’s
hospitalization did not occur until “two days after the filing deadline”; “counsel was able to
submit a large packet of evidence prior to the application due date”; and counsel failed to explain
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“why he was able to file that evidence packet but was unable to timely file respondent’s
application for relief five days later.”
Kent timely appealed to the BIA on Kada’s behalf. The BIA denied the appeal, agreeing
with the IJ’s conclusion that Kada had abandoned his application under the CAT. Kada
petitioned this court for review on October 24, 2018.
B. Second Motion to Reopen
Kada sought new counsel and filed a second motion to reopen before the BIA, which
included the argument that Kent provided ineffective assistance of counsel by failing to file
Kada’s CAT application. As part of this motion to reopen, Kada submitted documents
demonstrating that he complied with the procedural requirements for raising an ineffective
assistance of counsel claim. He also submitted State Department country condition reports,
which explained that Christians experience abuse and harassment by PMF members, and that the
Iraqi government continues its struggle with the remnants of the Islamic State as well as articles
indicating that the Iraqi judicial system often ignores evidence that defendants have been tortured
in state custody. The 2017 State Department Country Report, included in the record, states that
the “most significant human rights issues included allegations of unlawful killings by some
members of the ISF [Iraqi Security Forces], particularly some elements of the PMF;
disappearance and extortion by PMF elements; torture; harsh and life-threatening conditions in
detention and prison facilities; arbitrary arrests and detention.” “Impunity effectively existed for
government officials and security force personnel, including the Peshmerga and PMF.”
Also according to the evidence, armed groups threaten, pressure and harass Christians to
force them to observe Islamic customs, and Christians cannot hide their religion or move about
the country to a safer location because their national identity cards reference their religion.
“[G]overnment officials, as well as local and international human rights organizations,
documented instances of government agents committing torture and other abuses. There were
reports police sometimes used abusive methods and coerced confessions for investigations, and
courts accepted forced confessions as evidence. . . . As in previous years, there were credible
reports that government security forces, to include militia units associated with the PMF, abused
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and tortured individuals during arrest, pretrial detention, and after conviction.” Kada further
provided affidavits from purported experts indicating that Iraqi Christians and Iraqis returning
from the United States with criminal records are targeted for abuse and harassment in Iraq.
Before the BIA ruled on Kada’s pending motion to reopen, he was removed to Iraq on
December 12, 2018. He supplemented his motion to reopen with a written declaration stating
that, after he was removed to Iraq, three armed men pointed weapons at him but eventually let
him go. Since escaping that kidnapping attempt, Kada has stayed hidden inside where he lacks
access to medication. Kada’s friend reported the incident to the police, and the men who tried to
kidnap Kada were eventually apprehended. They confessed that they were motivated to kidnap
Kada to blackmail his family in the United States for ransom money.
On March 6, 2019, the BIA denied Kada’s motion to reopen, concluding that, even
though Kent had provided incompetent assistance, Kada had not demonstrated that he had been
prejudiced by Kent’s failure to timely file his CAT application. Kada timely petitioned for
review on March 20, 2019, and we consolidated the two petitions for review.
II. ANALYSIS
We review the BIA’s denial of a motion to reopen for an abuse of discretion. Sako v.
Gonzales, 434 F.3d 857, 863 (6th Cir. 2006). Because Kada had obtained new counsel to file his
second motion to reopen, based on an ineffective assistance of counsel claim, we begin our
analysis there. Allegations of due process violations in removal proceedings are reviewed de
novo. Camara v. Holder, 705 F.3d 219, 223 (6th Cir. 2013); Denko v. I.N.S., 351 F.3d 717, 723
(6th Cir. 2003) (“[A]n ineffective assistance of counsel claim [in a deportation proceeding] is
reviewed under the Due Process Clause of the Fifth Amendment.”). IJs retain “broad discretion
in conducting [a removal] hearing,” but the Fifth Amendment entitles immigrants facing
deportation “to a full and fair hearing.” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009)
(quoting Castellano–Chacon v. INS, 341 F.3d 533, 553 (6th Cir.2003)). A due process violation
occurs when the proceeding is so fundamentally unfair that the applicant was prevented from
reasonably presenting his case. Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005).
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We have consistently followed the Supreme Court’s requirement that removal
proceedings “meet the essential standards of fairness,” including “at a minimum, the due process
rights of a noncitizen ‘to make his case before the immigration authorities’—and, if he wishes, to
‘hire counsel’ to do so.” Mendoza-Garcia v. Barr, 918 F.3d 498, 504 (6th Cir. 2019) (quoting
Bridges v. Wixon, 326 U.S. 135, 154 (1945); Al-Saka v. Sessions, 904 F.3d 427, 434 (6th Cir.
2018)). “Ineffective assistance of counsel in a deportation proceeding” rises to the level of a
due-process violation under the Fifth Amendment if it renders the proceeding “‘so fundamentally
unfair that the alien was prevented from reasonably presenting his case.’” Denko 351 F.3d at 723
(quoting Ramirez–Durazo v. INS, 794 F.2d 491, 499–500 (9th Cir.1986)). The BIA has crafted
an administrative remedy for ineffective-assistance claims, In re Lozada, 19 I. & N. Dec. 637,
638–39 (B.I.A. 1988), which satisfies the constitutional due process requirements, Al-Saka, 904
F.3d at 433; id at 434 (White, J., concurring) (“[T]he Lozada framework satisfies any arguable
constitutional due process requirements pertaining to the effective assistance of immigration
counsel.”).
Al-Saka v. Sessions discussed in dicta the panel’s view that “poor lawyering” cannot
amount to a “due process violation” in the removal context because there is no “right to
government-provided counsel in civil litigation,” meaning the Fifth Amendment does not
guarantee “the right to effective counsel in removal proceedings.” 904 F.3d at 434; see id. at 435
(White, J., concurring) (deeming the opinion’s discussion of constitutional requirements
“unnecessary” (i.e. dicta)). Even if this discussion were not dicta, Al-Saka only “stated that there
is no independent Fifth Amendment right to counsel beyond the administrative remedy for
ineffective assistance of counsel outlined by the Justice Department.” Villanueva-Vasquez v.
Barr, 774 F. App’x 269, 275 (6th Cir. 2019). In any case, even if Kada had no viable claim
under the Fifth Amendment, his motion to reopen on the basis of ineffective assistance of
counsel could still proceed under the administrative framework set forth in Lozada. Huicochea-
Gomez v. I.N.S., 237 F.3d 696, 699 (6th Cir. 2001) (“The alien carries the burden of establishing
that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order
to prove that he has suffered a denial of due process.” (citing Dokic v. I.N.S., 999 F.2d 539 (per
curiam) (6th Cir. 1993))).
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To succeed on a motion to reopen before the BIA based on the ineffective assistance of
counsel, a petitioner must satisfy two conditions. Sako, 434 F.3d at 863. First, the petitioner
must meet the requirements set forth in Lozada. Lozada requires the motion to reopen to be
supported by an affidavit detailing counsel’s failings, proof that counsel was informed of the
allegations, and evidence that the petitioner filed disciplinary charges with the appropriate
authorities. See id. The parties agree that Kada complied with Lozada, and that Kent provided
ineffective assistance when he failed to timely file Kada’s application for deferral of removal,
failed to request an extension of the filing deadline, failed to provide the IJ with evidence that his
incapacitation prevented him from filing Kada’s application, and failed to advise Kada to retain
new counsel given his illness.
Second, the petitioner must show he was prejudiced by his attorney’s action or inaction.
To do so, he must demonstrate a reasonable probability that, but for his counsel’s ineffective
assistance, he would have been entitled to remain in the United States.1 See Sako, 434 F.3d at
864; Keith v. Mitchell, 455 F.3d 662, 677 (6th Cir. 2006) (To prove prejudice in the Sixth
Amendment context, a defendant must establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984))). “The prejudice inquiry does not require
proving the certainty of entitlement, but focuses instead on whether a petitioner’s claims ‘could
have supported a different outcome.’” Callejas v. Holder, 534 F. App’x 386, 389 (6th Cir. 2013)
(quoting Sako, 434 F.3d at 864); see also Mendoza-Garcia, 918 F.3d at 508 n. 2 (describing
Sako’s prejudice standard as a “permissive formulation”); Camara, 705 F.3d at 223 (“Substantial
1
An earlier published panel decision, Huicochea-Gomez v. I.N.S., 237 F.3d 696 (6th Cir. 2001), described a
test for prejudice requiring a petitioner to establish that “but for” her counsel’s legal advice, she “would have been
entitled to continue residing in the United States.” 237 F.3d at 699–700. That exacting prejudice standard, which
requires certainty, was announced in dicta, however, and does not bind us. Richmond Health Facilities v. Nichols,
811 F.3d 192, 201 n.8 (6th Cir. 2016) (defining dicta as a “judicial comment made while delivering a judicial
opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be
considered persuasive).” (quoting Obiter Dictum, Black’s Law Dictionary (10th ed.2014))); United States v.
Burroughs, 5 F.3d 192, 194 (6th Cir. 1993) (“[O]ne panel of this court is not bound by dicta in a previously
published panel opinion.” (citation omitted)). Specifically, because the petitioners in Huicochea-Gomez “conceded
their removability,” their counsel’s ineffectiveness was immaterial to their lack of an entitlement to stay in the
United States. 237 F.3d at 700. They could show neither a reasonable probability nor a certainty that they would
have been entitled to remain in the United States absent their attorney’s ineffective assistance. The certainty
prejudice standard was not necessary to the outcome in Huicochea-Gomez and was therefore non-binding dicta.
Nos. 18-4038/19-3218 Kada v. Barr Page 8
prejudice is shown if ‘the alleged violation affected the outcome of the proceeding.’” (quoting
Lin, 565 F.3d at 979)).
Several of our sister circuits have adopted the reasonable probability approach, an
equivalent approach, or a less exacting approach for determining prejudice. See, e.g., Hernandez
v. Reno, 238 F.3d 50, 56 (1st Cir. 2001); United States v. Charleswell, 456 F.3d 347, 361 n.16
(3d Cir. 2006); Obleshchenko v. Ashcroft, 392 F.3d 970, 972 (8th Cir. 2004); Ortiz v. I.N.S., 179
F.3d 1148, 1153 (9th Cir. 1999); United States v. Aguirre-Tello, 353 F.3d 1199, 1208–09 (10th
Cir. 2004) (en banc); Dakane v. U.S. Atty. Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).
Having stated the correct reasonable probability framework, we turn to the BIA’s
approach to Kent’s ineffective assistance of counsel claim. In concluding that Kada had not been
prejudiced by Kent’s conduct, the BIA emphasized evidence submitted by Kada after his
removal to Iraq. For example, the BIA rejected Kada’s argument that reopening was warranted
based on prior decisions in similar BIA cases because those decisions addressed “the question of
the possibility of detention and mistreatment by the Iraqi government immediately upon arrival,”
and Kada’s post-removal evidence showed that he was not detained and mistreated by the Iraqi
government immediately upon arrival. By evaluating Kada’s post-removal evidence in this way,
the BIA applied a rule that required Kada to prove he necessarily would have prevailed had his
attorney timely filed his application for protection under the CAT. That rule conflicts with the
permissive prejudice formulation outlined in Sako and its progeny. “‘Prejudice’ inquires,
ex post, whether due process was violated by evaluating whether the alien’s claims could have
supported a different outcome.” Sako, 434 F.3d at 864.
The BIA failed to account for record evidence and prior decisions, involving nearly
identical factual circumstances; and it did not analyze whether Kada showed a reasonable
probability that, but for the ineffective assistance of his counsel, he would have been entitled to
remain in the United States. Sako, 434 F.3d at 864. Kada presented the BIA with earlier, albeit
unpublished decisions, involving applicants who alleged that they would face torture and
persecution based on the same circumstances Kada faces: they are Chaldean Christians; they are
Americanized because they have resided in the United States for a significant amount of time;
they have convictions for serious crimes; and they will be subject to scrutiny because of the
Nos. 18-4038/19-3218 Kada v. Barr Page 9
notoriety of the planned mass removal of Iraqis from the United States. In those cases, the IJ had
found the applicants ineligible for relief under the CAT, but the BIA remanded for further factual
development. The BIA sought to distinguish these cases from Kada’s because of their
procedural posture—the cases stopped short of making determinations about the merits of the
applicants’ claims. That distinction is not meaningful, however, when asking the properly
framed question of whether Kada’s evidence demonstrated a reasonable probability that, but for
his counsel’s ineffective assistance, he would have been entitled to remain in the United States.
Implicit in these BIA remand decisions is the idea that experts testifying to the very evidence that
Kada seeks to introduce could lead the IJ to grant an applicant’s petition for relief under the
CAT.
For example, in one of the cited cases, the BIA instructed the IJ to “reconsider her finding
as to the likelihood of torture in light of all the expert testimony and the facts previously found:
i.e., that the respondent is a Chaldean Christian who has been in the United States for over
4 decades, speaks limited Arabic, and has a criminal history.” Although the BIA expressed “no
opinion about the proper outcome of these proceedings,” it noted that “[l]ike the IJ, we consider
this to be a close case,” and it remanded “to ensure all necessary facts are found for review.” If
the facts underlying that case—essentially the same facts alleged by Kada—would inevitably
have resulted in a denial of relief regardless of whether they were testified to by experts or lay
witnesses, remand would have been unnecessary.
Kada also cites to a decision where the agency remanded for ineffective assistance of
counsel based on a finding that the applicant, a Chaldean Christian with ties to the United States
and a criminal record who faced deportation to Iraq, had been prejudiced by counsel’s conduct.
In that case, the BIA reasoned that remand was appropriate because the applicant had offered
extensive country conditions evidence as well as statements from purported experts in support of
his motion. The same is true in this case. The BIA, however, failed to explain its conclusion
that Kada had not met his burden to show prejudice given the agency’s prior, opposite
conclusion for a similarly situated applicant. By failing to adequately distinguish Kada’s case
from that of a similarly situated Chaldean Christian facing removal to Iraq, the BIA violated its
own policies. Kiegemwe v. Holder, 427 F. App’x 473, 482 (6th Cir. 2011) (explaining that the
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BIA violates fundamental legal principles and its own policies when it treats similarly-situated
individuals differently without satisfactory explanation).
The BIA’s determination that Kada failed to meet “the heavy burden of demonstrating
that it is more likely than not that he would be tortured by [the PMF], or that he cannot live in an
area not controlled by PMF” because he had demonstrated only that the PMF harasses and
restricts the movement of Christians is also contrary to the record and BIA precedent. Kada
presented the 2017 State Department Country Report, which concluded that the “most significant
human rights issues” in Iraq “included allegations of unlawful killings by some members of the
ISF [Iraqi Security Forces], particularly some elements of the PMF; disappearance and extortion
by PMF elements; torture; harsh and life-threatening conditions in detention and prison facilities;
arbitrary arrests and detention.” The report explained that “[i]mpunity effectively existed for
government officials and security force personnel, including the Peshmerga and PMF.” The
evidence showed, moreover, that armed groups threaten, pressure and harass Christians to force
them to observe Islamic customs, and Christians cannot hide their religion or move about the
country to a safer location because their national identity cards reference their religion.
“[G]overnment agents” commit “torture and other abuses,” using “abusive methods and coerced
confessions for investigations, and” abusing and torturing “individuals during arrest, pretrial
detention, and after conviction.” Kada included evidence in the record that he is not only likely
to be tortured because of his status as an Iraqi Christian, but also because his criminal record and
Americanized behavior will be make him a target.
In one of the prior decisions cited by Kada, the applicant presented the 2017 International
Religious Freedom Report for Iraq, which indicated “that Shia and Kurdish militias increasingly
are harassing and abusing Christians throughout the Ninewa Plain, which is where the majority
of Christians in Iraq live.” The BIA concluded that this evidence was sufficient to “undercut[]
the Immigration Judge’s finding that returnees are only detained by the paramilitaries if they
have ties to ISIS,” and remanded for further proceedings. There, unlike here, the BIA did not
Nos. 18-4038/19-3218 Kada v. Barr Page 11
take issue with the fact that the applicant had demonstrated only that PMF officials harassed and
abused Christians without providing specific evidence that this harassment amounted to torture.2
Taken together, the BIA applied an incorrect standard. It required that Kada prove
prejudice by showing that his claims necessarily would have succeeded or that he has actually
been tortured rather than asking whether he demonstrated a reasonable probability that, but for
his counsel’s ineffective assistance, he would have been entitled to remain in the United States.
And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused
its discretion by denying Kada’s motion to reopen. Finding remand appropriate based on Kada’s
ineffective assistance of counsel claim, we need not resolve Kada’s petition for review in Case
No. 18-4038.
III. CONCLUSION
For the foregoing reasons, we GRANT the petition for review in Case No. 19-3218 based
on Kada’s ineffective assistance of counsel claim; we VACATE the BIA’s order denying Kada’s
second motion to reopen, and REMAND for further proceedings; and we DISMISS the petition
for review in Case No. 18-4038 as moot. We also DENY Kada’s motion to hold the case in
abeyance as moot.
2
Kada also relies on Yousif v. Lynch, 796 F.3d 622, 628 (6th Cir. 2015), to argue that his status “as a
Christian alone entitle[d] him to withholding of removal, given that there is ‘a clear probability’ that he would be
subject to future persecution if returned to contemporary Iraq.” In Yousif, the Government conceded that the
applicant was likely to be subject to future persecution because of his Christianity, but the court’s inquiry focused
instead on whether the applicant was barred from asylum because he had deliberately made misrepresentations about
his past experiences. Id. at 627–28. The Government has not made that same concession here.