Al-Ghizi v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 8, 2022
• Docket: 21-9582
• Status: Unpublished

Opinion

Appellate Case: 21-9582 Document: 010110779225 Date Filed: 12/08/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 8, 2022 _________________________________ Christopher M. Wolpert Clerk of Court ADNAN KHUDAIR SHAREEF AL- GHIZI,

Petitioner,

v. No. 21-9582 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges. _________________________________

The United States admitted Adnan Al-Ghizi as an Iraqi refugee. Following his

conviction for violating a protective order, an immigration judge (IJ) ordered Al-

Ghizi’s removal to Iraq in 2012. Al-Ghizi filed a motion to reopen removal

proceedings based on changed country conditions and ineffective assistance of

counsel. An IJ denied his motion, and the Board of Immigration Appeals dismissed

his appeal. He now seeks review of the Board’s denial. We deny Al-Ghizi’s petition

for review because the Board did not abuse its discretion in concluding that he failed

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9582 Document: 010110779225 Date Filed: 12/08/2022 Page: 2

to show a material change in country conditions and that his prior counsel’s

ineffective assistance prejudiced him.

I. Background

The United States admitted Al-Ghizi as a refugee in 1996. Several years later,

a state court convicted him of violating a protective order. The state court

determined he “engaged in conduct that violated a portion of the order that involved

protection against credible reports of violence, repeated harassment, or bodily injury

to the person or persons for whom the protection order was issued.” R., Vol. I at 78.

Because of this conviction, the Department of Homeland Security initiated removal

proceedings against him under 8 U.S.C. § 1227(a)(2)(E)(ii) in 2012. Appearing

before the immigration court pro se, Al-Ghizi admitted the allegations in his Notice

to Appear, and the court sustained the charge of removability.

Al-Ghizi subsequently hired an attorney and submitted an adjustment of status

application and an application for asylum, withholding of removal, and protection

under the Convention Against Torture. At the hearing, the IJ agreed with the

Department that Al-Ghizi was ineligible for asylum and withholding of removal

relief because his participation in a violent uprising against Saddam Hussein’s regime

in 1991 constituted material support of terrorist activity under the terrorism-related

inadmissibility grounds statute. The IJ also concluded Al-Ghizi was not eligible for

protection under the Convention because (1) Al-Ghizi failed to present evidence of

torture, (2) the IJ found Al-Ghizi was not credible, and (3) “as a matter of

discretion.” R., Vol. III at 913. Al-Ghizi, through counsel, waived his right to 2 Appellate Case: 21-9582 Document: 010110779225 Date Filed: 12/08/2022 Page: 3

appeal. But the United States did not remove Al-Ghizi because, at that time, Iraq

refused to issue travel documents for repatriations of Iraqi deportees. After several

years, the United States and Iraq reached an agreement regarding the removal of Iraqi

nationals. The agreement prompted Immigration and Customs Enforcement to arrest

Al-Ghizi and prepare him for removal.

The following year, in 2018, Al-Ghizi filed a motion to reopen his removal

proceedings, acknowledging the 90-day deadline to file such a motion had long

passed. Al-Ghizi contended that the time-bar should not apply for two reasons: (1)

there were changed country conditions in Iraq, and (2) his prior counsel provided

ineffective assistance. An IJ denied the motion, explaining that Al-Ghizi failed to

show prejudice resulting from his counsel’s ineffective assistance and that the

country conditions in Iraq had not changed from 2012. On appeal, the Board agreed

with the IJ and dismissed the appeal. Al-Ghizi then filed the present petition for

review.

II. Analysis

We have jurisdiction to review the Board’s denial of a motion to reopen

through a petition for review under 8 U.S.C. § 1252(a)(1). We review its denial for

abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004).

“The BIA abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains

only summary or conclusory statements.” Id.

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Al-Ghizi argues the Board erroneously concluded: (1) conditions in Iraq for

Christian and Iraqi deportees with criminal records had not materially worsened

between 2012 and 2018; (2) the IJ explicitly determined Al-Ghizi was inadmissible

based on terrorism-related inadmissibility grounds; (3) Al-Ghizi’s former counsel’s

ineffective assistance did not prejudice him; and (4) Al-Ghizi could not establish

eligibility for deferral of removal under the Convention Against Torture. Because

the second, third, and fourth alleged errors all relate to Al-Ghizi’s previous counsel

and the 2012 hearing, we address them together.

A. Change in Country Conditions

Al-Ghizi first contends that the conditions in Iraq have changed since his 2012

hearing such that his motion to reopen, which typically must be filed within 90 days

of the final removal order, is timely.

An alien facing removal generally must file a motion to reopen removal

proceedings within 90 days of the date of entry of a final removal order. 8 U.S.C.

§ 1229a(c)(7)(C)(i). There is no time limit, however, if the motion to reopen “is

based on changed country conditions arising in the country of nationality or the

country to which removal has been ordered, if such evidence is material and was not

available and would not have been discovered or presented at the previous

proceeding.” Id. § 1229a(c)(7)(C)(ii). In our circuit, “a significant increase in the

level of persecution constitutes a material change in country conditions for purposes

of 8 U.S.C. § 1229a(c)(7)(C)” and “the [Board] abuses its discretion when it fails to

assess and consider a petitioner’s evidence that the persecution of others in his

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protected category has substantially worsened since the initial application. Qiu v.

Sessions, 870 F.3d 1200, 1204–05 (10th Cir. 2017).

Al-Ghizi advances three arguments in support of his contention that the

conditions in Iraq have changed since the 2012 hearing to filing this motion in 2018:

(1) there is heightened suspicion towards Iraqi deportees after then-President

Trump’s travel ban; (2) there are new risks to Iraqi deportees stemming from a

general perception of them as criminals; and (3) there is increased persecution of

Christians from ISIS and sectarian militias. But the Board and IJ carefully reviewed

all the offered evidence in determining that Al-Ghizi did not face a greater risk of

persecution or torture than he did in 2012.

Considering the first two arguments, the Board and the IJ discussed evidence

from the government and Al-Ghizi, including anecdotal evidence and reports offered

by Al-Ghizi and the testimony evidence offered by the government. The Board and

IJ acknowledged Al-Ghizi’s anecdotal evidence and reports that Iraqi government

officials and police occasionally used torture to obtain confessions and during pre-

trial detention. The Board and IJ also noted Al-Ghizi’s evidence that Iraqis and the

Iraqi government opposed their inclusion in then-President Trump’s travel ban.

While Al-Ghizi supplied expert testimony and anecdotal evidence, the Board

and the IJ found the government’s evidence more persuasive. That evidence included

expert witness testimony. As one witness stated, “The government of Iraq is focused

on counter terrorism and post-ISIS stabilization, and I find the suggestion that the

government of Iraq will be interested in detaining returning Iraqis, even those who

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are criminals, for a substantial period of time, much less harming them, to be

farfetched.” R., Vol. II at 583. And another expert witness commented that only

“those suspected of having committed serious criminal offenses inside Iraq, like

murder and rape, would likely be detained.” Id. at 631. The expert continued that

“[d]etention is unlikely should the returnee be able to show family connections.” Id.

at 630. The Board noted Al-Ghizi has family connections in Iraq. Thus, there is

sufficient evidence in the record to support the Board’s conclusion that there was not

material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C).

Al-Ghizi’s third argument regarding his conversion to Christianity fares no

better. As a threshold matter, Al-Ghizi’s conversion is not enough on its own to

support a motion to reopen because “changed personal circumstances cannot support

an untimely motion to reopen after a final order of removal.” Wei v. Mukasey, 545

F.3d 1248, 1249 (10th Cir. 2008). Al-Ghizi instead must show that the Board abused

its discretion in determining that the treatment of Christians in Iraq has not materially

changed since 2012. The Board and IJ commented on Al-Ghizi’s evidence that

Christians in Iraq have suffered threats of violence for many years, particularly with

the rise of ISIS in 2014. But this threat, the Board emphasized, has been effectively

removed by ISIS’s defeat in 2017. According to the Board, the conditions for

Christians in Iraq have significantly improved although they remain far from ideal.

Indeed, the Board observed that “[m]any internally displaced Christians and other

minorities had returned to their homes without issue by September 2017.” R., Vol. I

at 7. Because the Board supported and explained its conclusion consistent with the

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evidence in the record that the conditions in Iraq had not materially worsened from

2012 to 2018, it did not abuse its discretion.

We hold that the Board did not abuse its discretion in concluding that Al-Ghizi

failed to demonstrate changed country conditions. The record shows that the risk of

torture and persecution for Christians and Iraqi deportees had either improved or

remained the same between 2012 and 2018.

B. Ineffective Assistance of Counsel

Al-Ghizi next argues the 90-day deadline for his motion to reopen should be

equitably tolled because his legal representation in 2012 constituted ineffective

assistance of counsel.

“[T]he Fifth Amendment guarantees aliens subject to deportation the right to a

fundamentally fair deportation proceeding.” Osei v. I.N.S., 305 F.3d 1205, 1208

(10th Cir. 2002). And “although there is no right to appointed counsel in deportation

proceedings,” an alien “can state a Fifth Amendment violation if he proves that

retained counsel was ineffective and, as a result, the petitioner was denied a

fundamentally fair proceeding.” Id.

The time limitation on motions to reopen may be equitably tolled in

circumstances of ineffective assistance of counsel. Riley v. I.N.S., 310 F.3d 1253,

1258 (10th Cir. 2002). To determine whether a particular case warrants equitable

tolling, the Board must examine the alien’s situation and his “due diligence along

with his attempts to comply with the [Board]’s requirements detailed in Matter of

Lozada, 19 I. & N. 637, 639 (BIA 1988).” Id. “Ineffective assistance of counsel in a

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deportation proceeding is a denial of due process only if the proceeding was so

fundamentally unfair that the alien was prevented from reasonably presenting his

case.” In re Lozada, 19 I. & N. at 638. The alien must also show that “he was

prejudiced by his representative’s performance.” Id. To show prejudice, Al-Ghizi

had to demonstrate a “reasonable likelihood that, but for the errors complained of, he

would not have been deported.” United States v. Aguirre-Tello, 353 F.3d 1199, 1208

(10th Cir. 2004).

The Board assumed without deciding that Al-Ghizi’s 2012 counsel provided

ineffective assistance. But it concluded Al-Ghizi did not show prejudice. It

explained that Al-Ghizi failed to demonstrate he would have been eligible for relief

but for the ineffective assistance.

In arguing that the Board abused its discretion, Al-Ghizi asserts (1) he is not

subject to the terrorism-related inadmissibility grounds, and (2) he is eligible for

relief under the Convention Against Torture. We disagree.

1. Terrorism-Related Inadmissibility Grounds

Al-Ghizi raises two issues: (1) the Board incorrectly assumed that the 2012 IJ

made a clear finding regarding the terrorism-related inadmissibility grounds bar, and

(2) even if the 2012 IJ made an explicit finding, he presented evidence showing the

bar is inapplicable.

Under the terrorism-related inadmissibility grounds, any individual who is a

member of a terrorist organization or who engaged or engages in terrorism-related

activity as defined by the Immigration and Nationality Act is inadmissible to the

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United States and is ineligible for most immigration benefits. 8 U.S.C.

§ 1182(a)(3)(B)(i). The term “engage in terrorist activity” includes providing

material support to a terrorism organization. Id. § 1182(a)(3)(B)(iv)(VI). “Material

support” includes actions such as providing a “safe house, transportation,

communications, funds, transfer of funds or other material financial benefit, false

documentation or identification, weapons (including chemical, biological, or

radiological weapons), explosives, or training” for terroristic activity. Id.

Part of Al-Ghizi’s 2012 hearing involved a dispute as to whether the terrorism-

related inadmissibility grounds barred Al-Ghizi from immigration benefits. The 2012

IJ concluded Al-Ghizi was subject to the terrorism-related inadmissibility grounds

bar because his participation in the 1991 Shia uprising against Saddam Hussein

constituted material support of terrorist activity.

First, Al-Ghizi asserts the 2012 IJ did not provide a conclusion as to whether

he was barred from immigration benefits on terrorism-related inadmissibility

grounds. But the hearing transcript proves otherwise: “I’m going to deny [relief]

because I don’t think the respondent’s [sic] met his burden of proof that he’s entitled

to relief. . . . I don’t think that he’s met his burden of proving to the Court that he

wasn’t part of the uprising in Nasseria.” R., Vol. III at 1032–33. The Board did not

abuse its discretion in finding that the IJ “made a ruling at the respondent’s 2012

hearing that the respondent was subject to the [TRIG-bar].” R., Vol. I at 4.

Second, even if the 2012 IJ did not make this explicit finding, Al-Ghizi has not

produced any evidence demonstrating why he is not subject to the terrorism-related

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inadmissibility bar.1 His motion lacks any allegations regarding his material support

of terrorism during the 1991 Shia uprising. He instead explains that he will provide

additional information about his participation in the uprising at a future merits

hearing. But motions to reopen require an individual to “state the new facts that will

be proven at a hearing to be held if the motion is granted.” 8 U.S.C.

§ 1229a(c)(7)(B). Because Al-Ghizi failed to provide any new evidence showing that

he is not subject to the terrorism-related inadmissibility grounds bar, the Board did

not abuse its discretion in finding no counsel-related prejudice and denying the

motion to reopen.

In addition, Al-Ghizi presents several arguments on appeal that he did not

previously raise. For example, he now argues his attorney should have presented

evidence or asked questions relevant to the Department of Homeland Security

Secretary’s discretionary TRIG exemption under 8 U.S.C. § 1182(d)(3)(B)(i) for

participation in the 1991 Iraqi uprisings. See DHS Secretary Janet Napolitano,

Implementation of New Exemptions Under Immigration and Nationality Act (INA)

Section 212(d)(3)(B)(i) for Participation in Iraqi Uprisings, USCIS (Nov. 12, 2012),

https://www.uscis.gov/sites/default/files/document/legal-docs/Iraqi%20Uprisings%

20Exemption%2011_12.pdf (“On August 17, 2012 . . . the [DHS Secretary] exercised

her discretionary authority not to apply most terrorism-related inadmissibility

grounds to certain aliens for participation in the Iraqi uprisings against the

1 We add that Al-Ghizi admitted on his refugee application to participating in the uprising. 10 Appellate Case: 21-9582 Document: 010110779225 Date Filed: 12/08/2022 Page: 11

government of Saddam Hussein in Iraq from March 1 through April 5, 1991.”). Al-

Ghizi’s failure to exhaust this argument places it beyond the scope of our

consideration. See 8 U.S.C. §1252(d)(1); Garcia-Carbajal v. Holder, 625 F.3d 1233,

1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien must present the same

specific legal theory to the BIA before he or she may advance it in court.”). The

Board could not have abused its discretion by failing to rule in Al-Ghizi’s favor on

arguments the IJ or the Board never had the opportunity to consider.

2. Convention Against Torture

The Board also did not abuse its discretion in deciding that Al-Ghizi failed to

show he was eligible for relief under the Convention Against Torture. Under the

Convention, an applicant must establish that someone in his alleged circumstances

will more likely than not be tortured in the country designated for removal. Cruz-

Funez v. Gonzalez, 406 F.3d 1187, 1192 (10th Cir. 2005). As previously discussed,

Al-Ghizi has not provided evidence establishing that he faces a particularized risk of

torture. And the Board and the IJ emphasized that Al-Ghizi’s remaining family in

Iraq have not suffered any harm in recent years, further supporting the Board’s

conclusion. See Mukhia v. Holder, 507 F. App’x 824, 829 (10th Cir. 2013) (“[T]he

continued presence of an alien’s family members in the country of removal without

further harm undercuts an asserted fear of persecution.”).

In sum, the Board did not abuse its discretion in finding that Al-Ghizi suffered

no prejudice from counsel’s performance in the 2012 proceedings.

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III. Conclusion

The Board did not abuse its discretion in denying Al-Ghizi’s motion to reopen

removal proceedings. We deny Al-Ghizi’s petition for review.

Entered for the Court

Timothy M. Tymkovich Circuit Judge