Kay, Maung Z. v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3140 & 03-2125
MAUNG ZAR KAY,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A76 458 656
____________
ARGUED FEBRUARY 17, 2004—DECIDED OCTOBER 29, 2004
____________
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Maung Zar Kay, a Burmese na-
tional, born February 4, 1978, fled to the United States in
October 1997.1 He was admitted into this country as a
tourist seeking asylum on October 8, 1997. The Board or-
dered Kay removable in absentia on September 9, 1998. Kay
sought to reopen the proceedings for substantive consid-
1
Kay is now married to a Burmese national and they have a
United States citizen daughter born March 8, 2003.
2 Nos. 02-3140 & 03-2125
eration of his asylum and withholding of removal petition. He
also filed a subsequent motion to reopen for consideration of
his eligibility for relief under the Convention Against Torture
(CAT). The Board denied both motions. We affirm the
Board’s decision to deny Kay’s motion to reopen to seek
asylum and withholding of removal because he did not show
that his failure to appear was due to exceptional circum-
stances. However, we reverse the Board’s decision to deny
Kay’s motion to reopen for consideration of his CAT eligi-
bility as the decision lacked a reasoned basis.
I. BACKGROUND
A. Procedural History
After his entry into the United States, Kay submitted an
application for asylum and withholding of removal on
December 6, 1997 and the matter was referred to an
Immigration Judge (IJ) in Chicago, Illinois on March 30,
1998. Kay appeared pro se for his first asylum hearing on
April 29, 1998. The hearing was rescheduled, due to the IJ’s
absence, for July 22, 1998. Prior to the rescheduled hearing
date, Kay relocated from Chicago to San Francisco, California.
On July 14, 1998, the Immigration Court received a correct
Change of Address Notice from Kay. Upon receiving the
Change of Address Notice, the court issued another notice
postponing the scheduled July 22 hearing until September
9, 1998, and stating in the notice that the hearing was to
take place in Chicago. Kay, under the mistaken belief that
changing his address with the court would change the venue
of his asylum hearing, failed to appear in Chicago on
September 9 causing the IJ to deny his petition for asylum
in absentia and order him removable.2
2
Kay did not file a Change of Venue petition, which would have
been the proper method to request a change of the location of the
(continued...)
Nos. 02-3140 & 03-2125 3
On September 24, 1998, after receiving the in absentia
order of removal, Kay retained Bruce A. Fodiman as coun-
sel. Counsel filed a timely motion to reopen proceedings on
October 9, 1998, which the IJ denied on December 31, 1998.
The IJ found that Kay received proper notice of the hearing
and that Kay’s erroneous belief that a Change of Address
Notice would change the location of his asylum did not con-
stitute exceptional circumstances sufficient to reopen the pro-
ceedings. 8 U.S.C. § 1229a(b)(5)(C). Kay appealed the IJ’s
decision to the BIA on January 21, 1999.
On November 7, 2000, during the pendency of Kay’s appeal
of the IJ’s denial of his motion to reopen, counsel filed a
separate motion with the BIA, identifying the pleading as
a “motion to remand,” as opposed to correctly labeling it a
motion to reopen, seeking protection under CAT. In support
of this motion, counsel attached a copy of one page of Kay’s
Form I-589 asylum application as well as the 1999 State
Department’s Country Report on Burma. On July 19, 2002,
the BIA denied both of Kay’s motions, upholding the IJ’s
December 31, 1998 denial of Kay’s original motion to reopen
and finding his November 7, 2000 motion for relief under
CAT untimely. As to Kay’s original motion to reopen, the
BIA agreed with the IJ that Kay had failed to demonstrate
“exceptional circumstances” because he was given fair notice
of the hearing’s time and location and his failure to appear
was not due to circumstances beyond his control. Concern-
ing Kay’s CAT motion, the Board found that in order to seek
protection under CAT, pursuant to 8 C.F.R. § 208.17(a), Kay
was required to file his CAT motion to reopen prior to June
2
(...continued)
asylum hearing, 8 C.F.R. § 1003.20(b), until November 7, 2000. As
the Board did not grant his request, venue is proper in this court
because Chicago was the location of the entry of his in absentia
removal order. 8 U.S.C. § 1252(b)(2).
4 Nos. 02-3140 & 03-2125
21, 1999, as he was under a final order of removal that
“became final” prior to March 22, 1999. 8 C.F.R. §
208.18(b)(2).
After retaining new counsel, Rhoda Wilkinson Domingo
(appellate counsel), Kay filed a third motion to reopen on
October 15, 2002, arguing that former counsel rendered in-
effective assistance by failing to file the CAT motion in a
timely manner. In support of the October 15 motion, appel-
late counsel submitted: (1) a complaint to the California
State Bar concerning former counsel; (2) a letter to former
counsel detailing Kay’s submission to the California Bar; (3)
a copy of the attorney-client agreement between Kay and
Attorney Fodiman; (4) the BIA’s July 19, 2002 decision; and
(5) a psychological assessment of Kay conducted by Eliza-
beth Schenk as well as her curriculum vitae. The psycholog-
ical assessment by Dr. Schenk diagnosed Kay with Post
Traumatic Stress Disorder (PTSD) and contained a detailed
account of Kay’s experiences in Burma. AR2 at 32-75.3 In
response to appellate counsel’s ineffective assistance allega-
tions, former counsel responded that he labeled the CAT
motion a “motion to remand” and failed to file the CAT
motion prior to June 21, 1999, because it was his under-
standing that “it was the longstanding policy of the Board
to not subject motions to remand in a pending direct appeal
of a case, such as Mr. Kay’s, to the time restrictions imposed
on motions to reopen.” AR1 at 5.4 On March 27, 2003, in a
paragraph-long per curiam unpublished order, the BIA
denied Kay’s October 15 motion stating:
We need not determine whether the respondent re-
ceived ineffective assistance of counsel, however,
3
All references to AR2 refer to the administrative record in
petitioner’s second appeal filed under No. 03-2125.
4
All references to AR1 refer to the administrative record in
petitioner’s first appeal filed under No. 02-3140.
Nos. 02-3140 & 03-2125 5
because, in our judgment, the documentation sub-
mitted by the respondent falls short of making a
prima facie showing that “it is more likely than not
that he . . . would be tortured” if he were to return
to Burma. Although the country condition material
in the record confirms some instances of brutality
by the military in Burma, it has not been prima
facie established that it is more likely than not that
respondent will be subject to such treatment.
Accordingly, the motion is denied.
(internal citations omitted). Under 8 U.S.C. § 1252(b)(1), an
applicant must petition for review in this court within 30
days of the final order of removal. The Board entered its
first order of removal on July 19, 2002, and Kay filed his
first petition for review in this court on August 19, 2002.
The Board entered its second order on March 27, 2003, and
Kay filed his second petition for review on April 25, 2003.
Therefore, both appeals were timely. On April 28, 2003, we
consolidated review of the petitioner’s two appeals of the
BIA’s July 19, 2002 order (No. 02-3140) and March 27, 2003
order (No. 03-2125).
B. Basis for Relief
Seeking asylum, withholding of removal, and protection
under CAT, Kay argues that he will be subjected to pers-
ecution and torture at the hands of the Burmese government
if returned to his native country. The Burmese government
has a long history of violating human rights, suppressing
political speech, and persecuting ethnic and religious minor-
ities. See Bureau of Democracy, Human Rights, and Labor,
United States Department of State, Burma, Country Reports
on Human Rights Practices 2002 (March 31, 2003),
http://www.state.gov/g/drl/rls/hrrpt/ 2002/18237.htm (last
viewed October 8, 2004) (2002 Burma Country Report). The
2002 Burma Country Report indicates that Burma is still
6 Nos. 02-3140 & 03-2125
ruled by a military junta which has been reported to kill,
rape, and place its citizens in forced labor camps, as well as
torture and beat political detainees suspected of espousing
pro-democratic ideologies. See id.; Lwin v. INS, 144 F.3d
505 (7th Cir. 1998) (addressing Burma’s authoritarian
military regime and its past brutality against pro-demo-
cratic student protesters).
During his childhood, Kay alleges that his father was an
active member and sergeant in the Kachin Independence
Association (KIA), a political opposition group to the Burmese
government. Though Kay was not an active member of KIA,
its members frequently visited his home. He recalls that as
a child his father was tortured and his brother killed by
government soldiers. He also claims that while attending
classes at Hlaing College in Rangoon, he became involved
in student rallies and demonstrations to raise consciousness
about the Burmese government’s human rights violations.
He states that he was arrested twice by Burmese military
officials in Rangoon. On the first occasion, December 3, 1996,
in Shwe Dagon Pagoda, he was arrested after a student
protest and detained for several hours. He was subsequently
released but went into hiding in Kun Gyan Gon. On the
second occasion, he claims he was held by Burmese military
men for two weeks and beaten severely. According to Dr.
Schenk, he still carries scars on several parts of his body
where the soldiers beat him. AR1 at 66. After this incident
his family arranged for him to flee Burma and seek asylum
in the United States.5
5
In his Form I-589 application for asylum, which also serves as
an application for CAT relief, Kay stated the following:
When I was young my father was a member of the
Kachin Independence Association. I had one brother and
two sisters. One day while my father was away from
home government soldiers came to look for him. Not
(continued...)
Nos. 02-3140 & 03-2125 7
5
(...continued)
finding my father, the soldiers took my brother outside of
the house and shot him to death.
At that time we lived at Lon Zan, a small village in the
Kachin State. Government soldiers would come to the
village and take away men and women to forced labor
camps to build new roads. One time my father was taken to
these camps and when he returned, he told us that he
was forced to work and, beaten by the soldiers and was
fed only one meal a day. After that, whenever soldiers
approached the village, my father went to hide in the
jungle.
When I was about fourteen years old, one night the sol-
diers came and burned our village. They shouted death
to the KIA supporters. Our house was nearly destroyed.
KIA troops came to our village that same day and tried
to follow the soldiers. The soldiers had disappeared into
the mountains, and could not be found.
About a week later, my father took our family to see the
KIA chief in Myitkyina. For our safety, my father re-
quested permission from the chief for all of us to move to
Rangoon. The chief agreed and told my father to keep in
contact. Our family moved to Rangoon.
If returned to my country, I fear that I will be caught by
the authorities and sent to prison and suffer the abuses
and torture by the guards. In Burma the people are not
allowed any legal representation and do not have any
human rights. Some students who were taken to prison
have died at the hands of the prison authorities. There
are several prisons around the country, and parents and
relatives are not informed as to which prison their son or
daughter is incassarated [sic]. The dead body of one
student leader who died in hospital from injuries sus-
tained at prison, was allowed to be identified by one close
relative, and only that person was allowed to accompany
the body to the cemetary [sic]. His own parents did not
(continued...)
8 Nos. 02-3140 & 03-2125
Kay attached the following evidence to his Form I-589: (1)
several newspaper articles which corroborate his account of
the atrocities committed by the Burmese military; (2) a
Hlaing College registrar form stating that Kay was a third
year student at the University from 1996 to 1997; (3) a let-
ter from the Pan Kachin Development Society in California
stating that Kay, as a member of the Kachin ethnic minority,
faces “imminent danger” if returned to Burma; and (4) a
1946 United States War Department release attesting to
the bravery of the “Kachin Rangers” in World War II and
discussing their extensive combat training. AR1 at 93-147.
Of particular note, Kay attached several articles concerning
the December 3, 1996 student protests in Rangoon. The first
article, dated December 4, 1996, from the Pacific Daily News,
entitled “Burma riot police disperse night-long student
protest,” states that over 150 heavily armed guards were re-
sponsible for breaking up a pro-democratic student protest
in the City of Rangoon. Another article, dated December 8,
1996, from the same newspaper, entitled, “Students defy
Burma military, stage pro-democratic protest,” stated that
over 487 students were detained after the December 3 pro-
5
(...continued)
get to see their own son. The Government tried to
coverup such abuses, but hospital staff leaked the news.
I am afraid such abuses could happen to me also.
I was arrested, detained and interrogated in Rangoon on
3 Dec., 96, for participating in student demonstrations
against the government I was arrested at the Shwe Dagon
Pagoda by riot police, and was taken to the old race track
where I was detained and interrogated. I was warned that
I would be in serious trouble if this happened again. I
was photographed and later released. They detained me
for about five hours. I returned home and in about a week
I had to leave the house to hide from the authorities.
AR2 at 145-149.
Nos. 02-3140 & 03-2125 9
test against government/military oppression. Kay also at-
tached three other articles which addressed the scope and
brutality of the government’s reaction to the student protests.
Id.
II. ANALYSIS
A. Motion to Reopen for Asylum or Withholding of
Removal
We first turn to Kay’s motion to reopen for consideration
of his asylum and withholding of removal eligibility. Under
the Immigration and Nationality Act (INA), an in absentia
deportation order may be rescinded if the applicant files a
motion to reopen “within 180 days after the date of the or-
der of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances (as defined
in subsection (e)(1)).” 8 U.S.C. § 1229a(b)(5)(C).6 If an appli-
cant is not alleging exceptional circumstances or a lack of
notice for his failure to appear, he must file his motion to
reopen “within 90 days of the date of entry of a final
administrative order of removal.” Id. at § 1229a(c)(6)(C)(i);
8 C.F.R. § 208.2(c)(3)(ii). Subsection (e)(1) defines “excep-
tional circumstances” as “serious illness of the alien or ser-
ious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances beyond
the control of the alien.” 8 U.S.C. § 1229a(e)(1) (internal
parentheses omitted).
We review the denial of a motion to reopen an order of re-
moval entered in absentia for abuse of discretion, Nazarova
v. INS, 171 F.3d 478, 482 (7th Cir. 1999); Ursachi v. INS,
296 F.3d 592, 594 (7th Cir. 2002), and may only examine
6
An applicant may file a motion to reopen any time upon a
showing that he did not receive proper notice of the hearing. 8
U.S.C. § 1229a(b)(5)(C)(ii). Kay does not argue that he did not
receive notice, thus that is not an issue on appeal.
10 Nos. 02-3140 & 03-2125
the validity of the notice afforded Kay, his stated reasons
for failing to appear, and whether removability has been
established, 8 U.S.C. § 1229a(b)(5)(D). Kay’s proffer to this
court that he suffered from PTSD, understood little English,
was pro se, and notified the court of his change of address
does not support a finding of “exceptional circumstances.”
Kay fails to explain how his PTSD prevented him from at-
tending the September 9 hearing. See Ursachi, 296 F.3d at
594 (finding that illness must be documented and give de-
tails sufficient to excuse alien’s absence). Nor does Kay argue
that he failed to receive or apprehend the notice afforded
him. See Nazarova, 171 F.3d at 483 (immigration court may
provide notice in English only). Kay’s pro se status, while
significant, is alone insufficient to excuse his absence be-
cause he does not dispute that he received notice. Finally,
Kay’s ignorance of the law, i.e., his mistaken belief that a
Change of Address Notice would serve to change the venue
of his hearing, also does not amount to an exceptional cir-
cumstance. See 8 C.F.R. § 1003.20(b) (stating an applicant
must file a motion to change venue with the Immigration
Court). The Immigration Court, upon receiving his Change
of Address Notice, delayed his hearing but clearly stated it
would be held in Chicago. Therefore, we cannot find that
the BIA abused its discretion by denying Kay’s motion to
reopen the proceedings for a determination of his asylum or
withholding of removal eligibility.
B. Timeliness of Motion to Reopen for a Determina-
tion of CAT Eligibility
While we conclude that Kay was not entitled to recision
of his in absentia order to consider his eligibility for asylum
and withholding of removal, his motion to reopen for a
Nos. 02-3140 & 03-2125 11
determination of his CAT eligibility is a separate matter.7
We find that the BIA incorrectly deemed Kay’s CAT motion
untimely and failed to provide a reasoned basis for its
denial on the merits.
As it relates to the timeliness of Kay’s November 7, 2000
motion to reopen, this case presents the question: when
does an in absentia order of removal “become final” for the
purposes of determining the deadline for an application to
reopen proceedings under CAT? According to its regula-
tions:
An alien under a final order of deportation, exclusion,
or removal that became final prior to March 22,
1999 may move to reopen proceedings for the sole
purpose of seeking protection under § 208.16(c).
Such motions shall be governed by §§ 3.23 and 3.2
of this chapter. . . . The motion to reopen shall not
be granted unless: (i) [t]he motion is filed within
[sic] June 21, 1999; and (ii) [t]he evidence sought to
be offered establishes a prima facie case that the
applicant’s removal must be withheld or deferred
under §§ 208.16(c) or 208.17(a).
8 C.F.R. § 208.18(b)(2) (emphasis added). However, “[a]n
alien who is in exclusion, deportation, or removal proceed-
ings on or after March 22, 1999 may apply for withholding
of removal under § 206.16(c), and, if applicable, may be
considered for deferral of removal under § 208.17(a).” Id. §
208.18(b)(1).
7
When Kay first applied for asylum or withholding of removal,
CAT relief was unavailable because the BIA refused to exercise
jurisdiction over CAT motions as CAT was not a self-executing
treaty and no regulations implementing the convention had been
drawn. See In re H-M-V-, 22 I. & N. Dec. 256 (BIA 1998) (declining
to exercise jurisdiction over CAT motions prior to the creation of
regulations concerning CAT implementation).
12 Nos. 02-3140 & 03-2125
Generally, an agency’s interpretation of its regulations is
entitled to due deference; however, when the agency’s in-
terpretation contravenes the plain language of the regula-
tion, congressional intent trumps. Zheng v. Ashcroft, 332
F.3d 1186, 1193-94 (9th Cir. 2003) (citing Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984)). We recognize that the IJ’s September 9, 1998 in
absentia order was a final order of removal; however, once
Kay filed a timely motion to reopen, under the plain lan-
guage of the CAT regulations, his deportation order did not
“become final” until that motion to reopen was denied by
the BIA on July 19, 2002. In its July 19, 2002 order, the
BIA summarily concluded, without analysis, that the in
absentia order of removal became final September 9, 1998,
the same day it was entered. While we acknowledge that
motions to reopen are generally disfavored and aliens who
fail to appear for hearings are to be rebuked, for the reasons
stated below, we find that Kay was not subject to the June
21, 1999 CAT filing deadline as he was in deportation pro-
ceedings after March 22, 1999.
First, in the context of an in absentia order, the only way
to “appeal” the removal order is to file a motion to reopen
the proceedings. 8 U.S.C. § 1229a(b)(5)(C). The plain lan-
guage of the CAT regulations contemplate that the appeals
process affects the timeliness determination by drawing a
distinction between the time an order is “final” and when it
“becomes final.” 8 C.F.R. § 208.18(b)(2). Further, this court
has held that a motion to reopen is “part and parcel” of the
underlying removal proceeding. Nwaokolo v. Ashcroft, 314
F.3d 303, 306 (7th Cir. 2002) (per curiam). Therefore, like
a merits determination, such as a denial of asylum relief,
we find that an in absentia order of removal becomes final
“when the Board renders its decision in a case on appeal or
certification or, where no appeal is taken, when the time
allotted for appeal has expired or the right to appeal is
waived.” In re L-V-K-, 22 I. & N. Dec. 976, 977-78 (BIA
1999) (en banc).
Nos. 02-3140 & 03-2125 13
Moreover, upon the filing of a motion to reopen after an
in absentia removal order has been entered, an applicant’s
removal is automatically stayed, 8 C.F.R. § 1003.23(b)(1)(v), in
order to allow the Board to conduct an independent review
of the order, In re Cecilia Rivera-Claros, 21 I. & N. Dec. 232
(BIA 1996) (applying reasoning to the 1994 version of the
United States Code which is not materially different from
current version). Once a deportation order is stayed, the
Immigration Court is prevented from executing an alien’s
deportation. In re M-S-, 22 I. & N. Dec. 349, 354 (BIA 1998);
cf. 8 U.S.C. § 1231(a)(1)(B) (“If the removal order is judi-
cially reviewed and if a court orders a stay of removal of the
alien,” the Board’s 90-day period to effectuate removal does
not begin to run until “the court’s final order” is entered.).
We also note that Kay could not have appealed the entry of
the September 9, 1998 in absentia order directly to this
court without first exhausting his administrative remedies
and “appealing” the IJ’s decision to the BIA through a mo-
tion to reopen. See Wijeratne v. INS, 961 F.2d 1344, 1345-46
(7th Cir. 1992) (finding that BIA’s decision denying motion
to reopen is a “final order”).
Finally, CAT relief is treated as a separate avenue for
relief. An applicant may file a second motion to reopen for
CAT relief without showing that the information presented
was previously unavailable. 8 C.F.R. § 208.18 (b)(2). Given
the Board’s distinct treatment of the review of in absentia
orders coupled with the nature of determining CAT relief,
we find that the September 9, 1998 order of removal did not
“become final” until the “appeals” process was terminated
with the BIA’s denial of Kay’s appeal of his motion to re-
open on July 19, 2002. Therefore, Kay was not required to
meet the June 21, 1999 deadline.8
8
We recognize the importance of finality in the immigration pro-
cess and the possibility that applicants may attempt to elongate
the process in order to extend their time in this country, see INS
(continued...)
14 Nos. 02-3140 & 03-2125
Even if we were to find that Kay was subject to the June
21, 1999 filing deadline, we would still be permitted to
review the Board’s substantive decision denying Kay CAT
relief. In its March 27, 2003 order, the Board considered
and denied Kay’s October 15, 2002 motion to reopen for
consideration of his CAT eligibility on the merits. The
Board could have decided the issue of Kay’s CAT entitle-
ment as an element of the ineffective assistance of counsel
determination, finding that he was not prejudiced by the
error and addressing his compliance with the requirements
of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988) (requiring
an applicant to: (1) file an affidavit explaining the agree-
ment between the applicant and former counsel and listing
what actions counsel failed to take; (2) grant former counsel
an opportunity to respond; and (3) indicate whether former
counsel’s error was reported to disciplinary authorities). How-
ever, the Board deemed the ineffective assistance of counsel
issue moot and stated that the documentation submitted by
Kay failed to establish a prima facie case for eligibility
under CAT. As the Board dismissed Kay’s motion on the
merits, we have jurisdiction to review its substantive determi-
nation. See Avelar-Cruz v. INS, 58 F.3d 338, 340 (7th Cir.
1995) (“Because the Board did not consider the argument
waived and addressed its merits, we have jurisdiction to
review the Board’s resolution of that issue.”). We now turn
to Kay’s motion for relief under CAT.
C. Eligibility Under CAT
To qualify for withholding or deferral of removal under
CAT, an applicant must prove “that it is more likely than
not that he or she would be tortured if removed to the pro-
8
(...continued)
v. Abudu, 485 U.S. 94, 107-110 (1988), however, we emphasize
that this ruling applies to a narrow group of applicants and solely
addresses the filing date for motions to reopen under CAT.
Nos. 02-3140 & 03-2125 15
posed country of removal.” 8 C.F.R. § 208.16(c)(2). Under 8
C.F.R. § 208.18(a)(1), torture is defined as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or
her or a third person information or a confession,
punishing him or her for an act he or she or a third
person has committed or is suspected of having com-
mitted, or intimidating or coercing him or her or a
third person, or for any reason based on discrimina-
tion of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other
person acting in an official capacity.
An IJ reviews the following factors when making this
determination: (1) evidence of past torture of the alien; (2)
whether the alien is able to relocate to another part of the
country where torture is not likely; (3) evidence of “gross,
flagrant or mass violations of human rights within the
country of removal”; and (4) other relevant information. Id.
§ 208.16(c)(3)(i)-(iv). An applicant may meet this standard
without corroborative evidence. Id. § 208.16(c)(2). Upon meet-
ing the standard, relief must be granted. Id. § 208.17(a).
Generally, the Board may deny an applicant’s motion to
reopen if he fails to comport with regulatory requirements
or fails to establish a prima facie case of eligibility for the
underlying relief sought. In re L-O-G-, 21 I. & N. Dec. 413,
414 (BIA 1996). In addition, where the underlying relief
sought is itself discretionary, the Board may deny the mo-
tion on that ground alone. Id. We review this determination
for abuse of discretion. Mansour v. INS, 230 F.3d 902, 906-
07 (7th Cir. 2000). “The BIA’s decision to deny [a] motion to
reopen will be upheld ‘unless it was made without a ra-
tional explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invid-
16 Nos. 02-3140 & 03-2125
ious discrimination against a particular race or group.’ ” Id.
at 907. A motion to reopen under CAT, however, is distinct
from an asylum claim and deserves independent substan-
tive consideration. Id.
According to the Board, when
ruling on a motion to reopen requires the exercise
of judgment regarding eligibility for the relief sought,
the Board historically has not required a conclusive
showing that, assuming the facts alleged to be true,
eligibility for relief has been established. Rather,
we have been willing to reopen where the new facts
alleged, when coupled with the facts already of
record, satisfy us that it would be worthwhile to
develop the issues further at a plenary hearing on
reopening.
In re L-O-G-, 21 I. & N. Dec. at 418-19 (internal quotation
omitted). And when an applicant “is asking that her case be
reopened so that she may apply for a form of relief which
was unavailable to her” and “has not had an opportunity to
present her application before the Immigration Judge, the
Board will look to whether the alien has proffered sufficient
evidence to indicate that there is a reasonable likelihood of
success on the merits. . . .” In re M-S-, 22 I. & N. Dec. at
356-57.
We find that the BIA’s decision to deny Kay relief under
CAT was “made without a rational explanation.” See Mansour,
230 F.3d at 906-07; see also Awe v. Ashcroft, 324 F.3d 509,
513-14 (7th Cir. 2003) (affirming in dicta reasoning of
Mansour that BIA is required to issue opinions with
rational explanations and adequate analysis of the record).
In the first instance, on July 19, 2002, Kay’s motion was
denied without review as it was deemed untimely, while in
the second instance, the terse March 27, 2003 order leaves
this court unable to review the BIA’s factual or legal
analysis.
Nos. 02-3140 & 03-2125 17
The BIA summarily states that “the country condition
material in the record confirms some instances of brutality
by the military in Burma.” This sentence (albeit an under-
statement of the human rights situation in Burma) clearly
supports Kay’s position. Directly following this statement,
however, the Board regurgitates the legal standard for
protection under CAT with no analysis or explanation and
then summarily denies Kay’s motion for relief. It is unclear
to this court what evidence the Board reviewed or even con-
sidered in coming to its conclusion. See Mansour, 230 F.3d
at 908 (vacating and remanding for further proceedings
when BIA failed to address United States State Department
Report concerning country conditions because BIA is required
to “consider the issues raised, and announce its decision in
terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted.”);
Chowdhury v. Ashcroft, 241 F.3d 848, 852 (7th Cir. 2001)
(noting that it is the duty of the Court of Appeals to “ensure
that the Board’s legal interpretations stay within the
boundaries permitted to it and that it has not unreasonably
failed to consider relevant factual information”).
Moreover, our inability to decipher whether the BIA had
a reasoned basis for its decision to deny Kay relief is further
underscored by its citation to In re Y-L-, A-G-, R-S-R-, 23
I.& N. Dec. 270 (BIA 2002) (finding no protection under CAT
for Haitian, Jamaican, and Dominican applicants convicted
of felony crimes because applicants failed to show gov-
ernmental connection to any possible torture upon removal
to native country), In re S-V-, 22 I. & N. Dec. 1306 (BIA
2000) (same rationale for Columbian applicant), and In re
J-E-, 23 I. & N. Dec. 291 (BIA 2002) (finding no “torture”
under CAT based upon potential indefinite detention of
felon deportee to Haiti), which are factually distinguishable
from the case at bar. The Board provides no explanation or
discussion concerning the applicability of these cases to the
disposition of Kay’s CAT claim. We fail to see how the first
18 Nos. 02-3140 & 03-2125
two cases, which highlight the need for government in-
volvement or inaction as an element for relief under CAT,
impact disposition of Kay’s application. After all, Kay alleged
direct government involvement. Nor is the Board’s citation
to In re J-E- enlightening, as that case bases its denial of
relief on the applicant’s lack of personal past persecution
and Kay alleged such past persecution. See Guchshenkov v.
Ashcroft, 366 F.3d 554, 558, 560 (7th Cir. 2004) (vacating
orders of removal and remanding for further proceedings
finding IJ and BIA decisions unreasoned, incomplete, and
lacking in analysis) (listing cases); Bace v. Ashcroft, 352
F.3d 1133, 1138 (7th Cir. 2003) (vacating order of removal
and remanding for further proceedings on asylum eligibility
where IJ failed to make a credibility or past persecution
determination); Azanor v. Ashcroft, 364 F.3d 1013, 1021
(9th Cir. 2004) (remanding for determination of motion to
reopen for CAT relief where Board tersely stated, with no
analysis, that applicant failed to establish prima facie case).
Most importantly, it is also difficult to see how Kay’s
allegations and supporting evidence do not establish prima
facie eligibility under CAT. First, Kay’s asylum application
alleges that he personally suffered past persecution and
may suffer future persecution at the hands of the Burmese
government due to his political activities and family affil-
iations. He alleges personal prior detention and physical
abuse at the hands of the Burmese military as well as phy-
sical abuse and even murder of his family members. Cf.
Pelinkovic v. Ashcroft, 366 F.3d 532, 542 (7th Cir. 2004)
(affirming BIA’s denial of a motion to reopen application for
protection under CAT when applicant failed to provide a
“particularized showing” that he or his family would be
individually targeted for torture). Second, Kay’s allegations of
Burma’s “gross, flagrant [and] mass violations of human
rights” are supported and corroborated by the United States
Country Reports on Human Rights Practices in Burma as
well as the numerous newspaper articles which are part of
Nos. 02-3140 & 03-2125 19
the administrative record. See Naim v. Ashcroft, 354 F.3d
652, 656 (7th Cir. 2004) (remanding to IJ for a determination
of whether there is a “clear probability” of future persecution
under withholding of removal standard when country report
supports applicant’s claims of persecution and IJ opinion is
riddled with factual errors). Finally, Kay was able to cor-
roborate his allegations concerning detention following the
student protests in December 1996 with newspaper articles
as well as providing evidence that he was a student at the
time of the protests.
III. CONCLUSION
Kay’s travels through the immigration labyrinth have
been less than smooth. In a case such as this, where the
applicant presents a strong case for relief, the underlying
relief sought is nondiscretionary, the applicant has not had
an opportunity to be heard, and the BIA issues a cursory
opinion, due process has been severely undermined.
This court has consistently recognized that aliens are
entitled to due process during deportation proceedings, which
includes a right to be heard. Capric v. Ashcroft, 355 F.3d
1075, 1087 (7th Cir. 2004). Given the handling of this case,
we question whether the proceedings thus far have satisfied
basic Fifth Amendment standards. See Chowdhury, 241
F.3d at 853 (confirming that immigration proceedings must
comport with basic due process standards); Ambati v. Reno,
233 F.3d 1054, 1061 (7th Cir. 2000) (reasoning that right to
due process is not violated when alien permitted to present
claim fully and fairly).
Further, while we recognize that Kay has no Sixth
Amendment right to effective counsel in immigration pro-
ceedings, Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001),
this court has nonetheless acknowledged the possibility that
counsel’s ineffectiveness may rise to the level of a due
20 Nos. 02-3140 & 03-2125
process violation if the alleged errors likely affected the
outcome of the proceeding, Ambati, 233 F.3d at 1061. The
Board has also recognized that ineffective assistance of
counsel may require a case to be reopened if the attorney’s
inadequate representation caused the proceedings to be “so
fundamentally unfair that the alien was prevented from
reasonably presenting his case” and that the alien was
prejudiced by the counsel’s failures. In re Lozada, 19 I. & N.
Dec. at 638.
Kay’s initial counsel’s performance was both procedurally
and substantively deficient. Procedurally, he erroneously
labeled the November 7, 2000 motion for relief under CAT
a “motion to remand” under the mistaken belief that using
the word “remand” as opposed to “reopen” would toll the
time for application. However, the title of a motion does not
dictate its characterization by the Board nor does it allow
counsel to evade procedural requirements. Krougliak v.
INS, 289 F.3d 457, 461 (7th Cir. 2002).
Substantively, his performance was also wanting. He at-
tached only one page of Kay’s asylum application to the
motion and the 1999 Burma Country Report when there was
clearly more evidence in the record to support Kay’s posi-
tion. See 8 C.F.R. § 1003.23(b)(3) (“Any motion to reopen for
the purpose of acting on an application for relief must be
accompanied by the appropriate application for relief and
all supporting documents.”) (emphsis added). Furthermore,
former counsel’s supporting brief simply states that Kay
was “arrested, detained, and interrogated in Rangoon on 3
Dec. 96” without providing any details, discussion, or sup-
porting analysis. This infirmity is especially grave given that
“[e]vidence of past torture inflicted upon the applicant” is of
paramount importance. See 8 C.F.R. § 208.16(c)(3)(i); In re
J-E-, 23 I. & N. Dec. 291, 303 (BIA 2002) (reasoning that
evidence of personal past torture is paramount even when
there is evidence of “gross, flagrant, or mass violations of
human rights in a particular country” because the focus of
Nos. 02-3140 & 03-2125 21
CAT is on whether that individual is at risk). Finally, the
brief fails to explain or point to the wealth of corroborative
evidence in the record. Appellate counsel, on the other hand,
conducted a psychological assessment of the applicant and
made specific reference to Kay’s personal abuse at the
hands of the Burmese military in her motion for CAT relief
filed on October 15, 2002. It would seem that former coun-
sel’s error had the effect of denying Kay an opportunity to
be heard, which may be an example of ineffective assistance
which rises to the level of a due process violation.
As appellate courts should not make substantive determi-
nations granting immigration relief in the first instance,
INS v. Ventura, 537 U.S. 12, 16 (2002), we remand for re-
consideration of Kay’s CAT motion. Upon remand, the
Board should consider the entire record before it as well as
allow the parties to supplement the record. See Bace, 352
F.3d at 1141-42. It may also behoove the Board to allow Kay
an opportunity to present his case in a hearing format.
Therefore, we AFFIRM the Board’s July 19, 2002 decision
insofar as it denied Kay’s motion to reopen for consideration
of his asylum and withholding of removal motions. How-
ever, we REVERSE the Board’s March 27, 2003 decision
denying Kay’s October 15, 2002 motion to reopen and remand
this case to the Board for reconsideration of Kay’s eligibility
for relief under CAT.
22 Nos. 02-3140 & 03-2125
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-04