Abdalsalam Omran v. Merrick Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 21, 2021
• Docket: 20-3916
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0211n.06

No. 20-3916

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 21, 2021 ABDALSALAM OMRAN, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS ) Respondent. ) )

BEFORE: SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges.

PER CURIAM. Abdalsalam Omran petitions this court for review of an order of the Board

of Immigration Appeals (“BIA”) dismissing his appeal from the denial of his motion to reopen his

removal proceedings and rescind a removal order entered in absentia. As set forth below, we deny

in part and dismiss in part the petition for review.

In November 2015, Omran, a native and citizen of Israel and the Occupied Territories,

entered the United States as a nonimmigrant B-2 visitor with authorization to remain for a six-

month period. Omran submitted an asylum application in October 2016. On March 2, 2018, the

Department of Homeland Security detained Omran and served him with a notice to appear in

removal proceedings, charging him with remaining in the United States for a time longer than

permitted by his visa. See 8 U.S.C. § 1227(a)(1)(B). Thomas Gilbert subsequently entered an

appearance as Omran’s attorney. At a hearing before the immigration court on March 26, 2018,

Omran, through counsel, admitted the factual allegations set forth in the notice to appear and

conceded removability as charged. During that hearing, the immigration court provided Gilbert No. 20-3916, Omran v. Garland

with a notice scheduling a hearing for April 26, 2018. Two days after the hearing, on March 28,

2018, the immigration court sent Gilbert another notice scheduling a hearing for May 29, 2018.

Gilbert appeared at the hearing on May 29, 2018, but Omran did not. At that hearing, the

immigration judge (“IJ”) found that removability had been established as charged and ordered that

Omran be removed in absentia.

Two weeks later, Omran filed a motion to reopen his removal proceedings and rescind the

in absentia removal order based on exceptional circumstances, asserting that counsel provided

ineffective assistance by failing to keep him apprised of the scheduled hearing date. The IJ denied

Omran’s motion to reopen and again ordered his removal. The IJ first found that reopening based

on lack of notice was unwarranted because counsel received the hearing notice. With respect to

Omran’s ineffective-assistance claim, the IJ pointed out that Omran complained about his current

counsel and that the procedural requirements for ineffective-assistance claims established by

Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), relate to former counsel. The IJ went on to

determine that Omran had failed to comply with the Lozada requirements: his affidavit

inadequately detailed his agreement with counsel and counsel’s failures; he provided an affidavit

from another attorney at the firm, Svetlana Schreiber, rather than counsel of record; and he failed

to file a complaint with the appropriate disciplinary authorities or provide an explanation for that

failure. Finally, the IJ declined to find that sua sponte reopening was warranted.

Omran filed a motion to reconsider the IJ’s decision denying his motion to reopen,

purportedly correcting the prior motion’s deficiencies. While his motion to reconsider was still

pending, Omran filed a notice of appeal in the BIA, which divested the immigration court of

jurisdiction over the motion to reconsider. See 8 C.F.R. § 1003.23(b)(1). Omran subsequently

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moved the BIA to remand to the immigration court to allow him to apply for adjustment of status

based on an approved petition for alien relative filed by his United States citizen wife.

The BIA dismissed Omran’s appeal from the IJ’s denial of his motion to reopen. According

to the BIA, the IJ properly concluded that reopening was not warranted based on deficient notice

because the immigration court satisfied the notice requirements. Recognizing that ineffective

assistance of counsel may constitute an exceptional circumstance to support reopening, the BIA

determined that Omran had failed to comply with the Lozada requirements: Omran’s affidavit

inadequately detailed his agreement with counsel and counsel’s deficiencies, counsel failed to

acknowledge his deficient performance or report his deficient performance to the relevant

disciplinary authorities, and Omran failed to explain why he had not pursued a bar complaint

against counsel. The BIA also found that Omran had failed to demonstrate prejudice or a denial

of fundamental fairness based on counsel’s conduct, stating that he had not challenged his

removability as charged in the notice to appear, that he had not shown a reasonable probability of

prevailing on his asylum application, and that he was not the beneficiary of an approved petition

for alien relative at the time of the final hearing and therefore was not prima facie eligible for that

form of relief when the removal order was entered. Finally, the BIA was unpersuaded that

exceptional circumstances warranted sua sponte reopening. One Board member dissented, stating

that he would have sustained the appeal based on the totality of the circumstances, including

Omran’s timely filing of the motion to reopen and the absence of any apparent bar to his eligibility

for adjustment of status.

Omran filed a timely petition for review of the BIA’s order. Omran argues that the BIA

erred in (1) concluding that he had failed to comply with the Lozada requirements, (2) concluding

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that counsel’s actions did not prejudice his case before the immigration court, and (3) declining to

reopen his case sua sponte.

“Where the BIA provides its own reasoning for denying a motion to reopen rather than

summarily affirming the IJ, we review the BIA’s decision as the final agency determination.”

Sanchez v. Holder, 627 F.3d 226, 230 (6th Cir. 2010). We review the denial of a motion to reopen

for abuse of discretion. Kada v. Barr, 946 F.3d 960, 963 (6th Cir. 2020). “In the case of a denial

of a motion to reopen, we look to whether the denial ‘was made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible basis such as

invidious discrimination against a particular race or group.’” E.A.C.A. v. Rosen, 985 F.3d 499,

503–04 (6th Cir. 2021) (quoting Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009)).

A removal order entered in absentia may be rescinded upon the timely filing of a motion

to reopen demonstrating “that the failure to appear was because of exceptional circumstances.”

8 U.S.C. § 1229a(b)(5)(C)(i). “Ineffective assistance of counsel can constitute exceptional

circumstances for purposes of filing a motion to reopen.” Paz-Martinez v. Barr, 828 F. App’x

302, 306 (6th Cir. 2020) (citing Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir. 2003)).

The BIA determined that Omran had failed to comply with the Lozada requirements.

Under Lozada, a motion to reopen based on ineffective assistance of counsel must be supported

by:

1) an affidavit setting forth “in detail the agreement that was entered into with former counsel with respect to the actions to be taken,” as well as any representations made by counsel to the [movant]; 2) proof that the movant has informed former counsel of the allegations in writing, as well as any response received; and 3) a statement detailing “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”

Scorteanu, 339 F.3d at 414 (quoting Lozada, 19 I. & N. Dec. at 639).

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According to the BIA, Omran’s affidavit inadequately detailed his agreement with counsel

and counsel’s deficiencies. With respect to the scope of counsel’s representation, Omran’s

affidavit stated: “My uncle drove me on several occasions to see the attorney when I went to

prepare my Asylum application. When I was detained by ERO and placed in Immigration

proceedings, my uncle worked closely with the Attorney to help with bond Motion, and get me

released from ICE Custody.” Neither Omran’s nor his uncle’s affidavit identified counsel by name

or provided any further information about the agreement with counsel, including whether counsel

agreed to represent Omran throughout his removal proceedings. Omran’s affidavit further stated:

“No notice was sent to my address and no one called to confirm I knew about the hearing.” Omran

made no affirmative claim that counsel rendered ineffective assistance by failing to keep him

apprised of the scheduled hearing date.

The BIA also found that Omran had failed to comply with the third Lozada requirement:

Omran neither filed a bar complaint against counsel nor explained why he declined to do so.

Omran argues that failure to file a bar complaint is excused “where counsel acknowledged the

ineffectiveness and made every effort to remedy the situation.” Fadiga v. Att’y Gen., 488 F.3d

142, 157 (3d Cir. 2007). But we have not adopted this approach to the reporting requirement. See,

e.g., Ibarra-Reina v. Lynch, 651 F. App’x 427, 432 (6th Cir. 2016); Komi v. Gonzales, 186 F.

App’x 597, 600 (6th Cir. 2006). The BIA observed that Omran’s failure to comply with the

reporting requirement “is particularly problematic here, as [he] remains represented by the same

counsel who allegedly performed deficiently before the Immigration Court[.]” The BIA noted that

the reporting requirement plays an important role in rooting out meritless or collusive ineffective-

assistance claims:

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The requirement that disciplinary authorities be notified of breaches of professional conduct not only serves to deter meritless claims of ineffective representation but also highlights the standards which should be expected of attorneys who represent persons in immigration proceedings, the outcome of which may, and often does, have enormous significance for the person.

Lozada, 19 I. & N. Dec. at 639-40.

The BIA did not abuse its discretion in determining that Omran had failed to comply with

the Lozada requirements. By failing to comply with those requirements, Omran forfeited his claim

of ineffective assistance as a basis for reopening his removal proceedings. See Pepaj v. Mukasey,

509 F.3d 725, 727 (6th Cir. 2007).1

Finally, Omran argues that the BIA erred in declining to reopen his case sua sponte,

asserting that relief in the forms of asylum and adjustment of status would be available to him if

his removal proceedings were reopened. The decision whether to invoke sua sponte authority to

reopen removal proceedings “‘is committed to the unfettered discretion of the BIA’ and therefore

is not subject to judicial review.” Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008) (quoting

Harchenko v. I.N.S., 379 F.3d 405, 410–11 (6th Cir. 2004)). Accordingly, we lack jurisdiction to

review the BIA’s discretionary decision to decline to reopen Omran’s case sua sponte.

For these reasons, we deny in part and dismiss in part Omran’s petition for review.

1 We note one issue with the BIA determining that Omran had failed to demonstrate prejudice or a denial of fundamental fairness based on counsel’s actions—the BIA has held that a movant is not required to show prejudice to rescind an in absentia removal order based on ineffective assistance of counsel. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (B.I.A. 1996); see E.A.C.A., 985 F.3d at 509 (holding that a movant “is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal”). However, the BIA’s failure to follow its own precedent is ultimately inconsequential in this case because Omran forfeited his ineffective-assistance claim by failing to comply with the Lozada requirements. -6-