Ali v. US Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 22, 2011
• Docket: 10-11290
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-11290 JUNE 22, 2011 JOHN LEY ________________________ CLERK Agency No. A075-977-673

SALIM MOHAMMED ALI,

lllllllllllllllllllll Petitioner,

versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 22, 2011)

Before PRYOR and COX, Circuit Judges, and PANNELL,* District Judge.

PRYOR, Circuit Judge:

The issue presented by this petition for review is whether an attorney

* Honorable Charles A. Pannell, Jr., United States District Judge for the Northern District of Georgia, sitting by designation. rendered ineffective assistance when he conceded, at a second removal hearing,

that Salim Mohammed Ali had sought to procure an immigration benefit through

willful misrepresentation of a material fact in violation of the Immigration and

Nationality Act, 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). In 1998, Ali had

stated falsely on his application for permanent residence or adjustment of status

that he had never been arrested or indicted. In fact, Ali had been arrested,

indicted, and convicted of child molestation. At his first removal hearing, Ali did

not contest his misrepresentation. The Board affirmed an order for Ali’s removal,

and we denied Ali’s petition for review, Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th

Cir. 2006). After Ali produced a certified copy of a pardon for his conviction of

child molestation, the Board reopened Ali’s proceedings and ordered a second

removal hearing. At that hearing, Ali testified, consistent with his concession at

the first hearing, that his earlier denial of an arrest or indictment had been false.

Ali expressed remorse and requested a discretionary waiver. After the

immigration judge denied Ali’s request for discretionary relief and ordered Ali’s

removal, Ali contended on appeal that his counsel at the second removal hearing

had rendered ineffective assistance by conceding his earlier misrepresentation. Ali

also argued that he had lied at his second hearing about his earlier lie on his

application. Ali would have done well to learn from Sir Walter Scott who

2 famously wrote, “O, what a tangled web we weave, [w]hen first we practise to

deceive!” Sir Walter Scott, Marmion: A Tale of Flodden Field in Six Cantos 177

(Thomas Bayne ed., Forgotten Books 2008) (1808). Because we conclude that

substantial evidence supports the finding by the Board of Immigration Appeals

that the attorney’s decision to concede removability was a reasonable strategic

decision, we deny Ali’s petition for review.

I. BACKGROUND

In July 1991, Ali, a native and citizen of Pakistan, entered the United States

as a non-immigrant visitor, and less than two years later, a grand jury in the

Superior Court of Clayton County, Georgia, indicted Ali on two counts of child

molestation. Ali pleaded guilty and was sentenced to five years of probation. The

superior court granted Ali’s petition for discharge under the First Offender Act of

Georgia, Ga. Code Ann. § 42-8-60, and ordered that “[u]pon fulfillment of the

terms of this sentence . . . the defendant shall stand discharged of said offense

without court adjudication of guilt and shall be completely exonerated of guilt.”

Ali filed an application for permanent residence or adjustment of status in

October 1998 and answered “No” in response to the question whether he had ever

been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or

violating any law or ordinance, excluding traffic violations.” In May 2002, the

3 Immigration and Naturalization Service issued to Ali a notice to appear at a

removal hearing on the charge that he was removable under section

237(a)(2)(A)(iii) of the Immigration Act as an alien convicted of an aggravated

felony, 8 U.S.C. §§ 1101 (a)(43)(A), 1227(a)(2)(A)(iii). In July 2002, Ali

appeared before the immigration judge and conceded that he was removable as

charged in the notice to appear, but he applied for relief from removal under the

Convention Against Torture. The immigration judge continued the hearing to give

Ali more time to prepare his application for relief under the Convention.

The Service filed additional charges against Ali under section 237(a)(1)(A)

of the Immigration Act as an alien who had been convicted of a crime involving

moral turpitude, id. §§ 1182(a)(2)(A)(i)(I), 1227(a)(1)(A), and as an alien who

sought to procure an immigration benefit by willfully misrepresenting a material

fact, id. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). Ali appeared and again conceded

removability based on both the earlier charge and the recently added charges. The

immigration judge denied Ali’s application for protection under the Convention

and ordered him removed to Pakistan. The Board dismissed Ali’s appeal because

he was ineligible for withholding of removal under the Convention and,

alternatively, Ali had failed to establish that it was more likely than not that he

would be tortured if he were removed to Pakistan.

4 In October 2003, Ali filed an extraordinary motion for a new trial in the

Georgia court and argued that, when he had pleaded guilty to child molestation, he

had thought that his plea would mean that he would have “no criminal record,

either in the eyes of the State of Georgia or in the eyes of the government of the

United States.” The Georgia court granted Ali’s motion and later granted the

motion of the district attorney to nolle prosse the molestation charges because of

“the circumstances of the case, the age of the case, the status of the defendant, and

the total implications of a retrial.”

Ali filed with the Board a motion to reopen his removal proceedings. The

Board denied the motion because Ali had failed to establish by sufficient evidence

that he no longer had a conviction for immigration purposes. The Board also

reasoned that, even if Ali had presented sufficient evidence of pardon, he would

nonetheless be removable because of the misrepresentation on his application for

permanent residence or adjustment of status.

We denied Ali’s petition for review and held that the Board did not abuse its

discretion when it denied Ali’s motion to reopen the removal proceedings. Ali,

443 F.3d at 814. We agreed with the Board that, even if Ali had presented

sufficient evidence that he no longer had a conviction, he was nonetheless

removable “as an ‘alien who, by fraud or willfully misrepresenting a material fact,’

5 sought to procure an immigration benefit.” Id. at 812 (quoting 8 U.S.C. §

1182(a)(6)(C)(i)). We reasoned that, “[a]lthough Ali now denies that his

misrepresentation was willful, he conceded as much at his removal hearing.” Id.

In September 2006, Ali, represented by new counsel, Socheat Chea, filed

with the Board another motion to reopen Ali’s removal proceedings and submitted

a certified copy of a pardon of Ali by the State of Georgia. Ali did not contest the

charge of willful misrepresentation, but instead argued that he was eligible for

discretionary relief from removal under section 237(a)(1)(H) of the Immigration

Act, 8 U.S.C. § 1227(a)(1)(H). The Board granted Ali’s motion and concluded

that the pardon “waive[d] his removability as an alien convicted of an aggravated

felony.” The Board also “recognize[d] that [Ali] was also found removable under

section 237(a)(1)(A) of the Act . . . . However, in light of his unconditional

pardon, [Ali] now seeks the opportunity to challenge those charges of removability

and to apply for relief from removal.” The Board remanded the case to the

immigration judge for further proceedings.

In May 2008, Ali, represented by Chea, appeared before the immigration

judge. At the commencement of the hearing, the government withdrew the

charges of removal based on an aggravated felony. Chea conceded that Ali was

removable under section 237(a)(1)(A) of the Immigration Act for the willful

6 misrepresentation, 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). Chea informed

the immigration judge that Ali would not seek relief under the Convention, but

instead he would seek only discretionary relief from removal under section

237(a)(1)(H) of the Immigration Act, 8 U.S.C. § 1227(a)(1)(H).

At the new removal hearing before the immigration judge, Chea asked Ali

whether he had been truthful in his application for permanent residence or

adjustment of status, and Ali admitted that he had not been truthful “[a]bout the

arrest issue. There, there was a question there which clearly asks have you been

arrested. . . . I replied that I was not arrested.” Chea asked Ali what he had

learned, and Ali responded, “I have learned from that incident that, number one

never to lie and number two be truthful about everything and you know, always

take two consultations for anything that you need to put on paper you need to take

two consultations. I learned one thing very important that, you know, not to make

a mistake again.” Chea asked, “What mistake is that?” and Ali responded,

“Mistake of putting anything, falsifying anything.”

Near the end of the hearing, the immigration judge observed that Ali’s

“[i]mmigration history is fraught with misrepresentations . . . before the Court,

before the U.S. Counselor Embassy, at the port of entry, . . . on the [application for

permanent residence or adjustment of status,] and before [the immigration judge]

7 at a prior hearing.” In response, Ali asked the immigration judge to be lenient and

expressed remorse: “I have, I admit I have done wrong, I admit to the fact that I

have lied on that application, I admit to all the allegations that [have] been given

to me. All I am seeking is mercy and forgiveness.”

In July 2008, Ali hired his third attorney, Matthew Weber, who filed a

motion to withdraw Chea’s concession of removability. In August 2008, the

immigration judge issued a written decision and ruled that Ali was removable

under section 237(a)(1)(A) of the Immigration Act for procuring admission to the

United States by fraud or willful misrepresentation, 8 U.S.C. §§ 1182(a)(6)(C)(i),

1227(a)(1)(A). The immigration judge questioned Ali’s sincerity and credibility

and concluded that, under the totality of the circumstances, Ali was undeserving of

discretionary waiver of removal. The immigration judge ordered Ali removed to

Pakistan.

Ali took to heart the adage “if at first you don’t succeed, try, try again,” and

again appealed to the Board in January 2009. Ali argued that the immigration

judge had clearly erred when he ordered Ali’s removal. Ali later also filed a

motion to remand and terminate proceedings due to ineffective assistance of

counsel. Ali argued that Chea had rendered ineffective assistance when he had

conceded that Ali’s misrepresentation on the application for permanent residence

8 or adjustment of status was willful. Ali argued that, if Chea had not made that

concession, the government would have been unable to prove that Ali had been

removable. Ali attached to his motion a letter from Chea responding to the

accusations of ineffective assistance. In the letter, Chea explained that he had

conceded that Ali was removable for the willful misrepresentation charge because

“it is clear that the pardon does not defeat the fraud charge because the fact is that

the arrest, plea and probation were not disclosed on [the application for permanent

residence or adjustment of status].” Chea also explained that Ali’s previous

attorney had already conceded that Ali was removable for the willful

misrepresentation when Ali sought relief under the Convention at the first removal

hearing.

The Board affirmed the decision of the immigration judge and dismissed

Ali’s appeal. The Board explained that, besides Chea’s concession before the

immigration judge, Ali had testified and had “admitted that he made several

misrepresentations, and that he [had] lied on the . . . adjustment of status

application.” The Board concluded that Chea had made a strategic decision not to

contest the misrepresentation charges and had not rendered ineffective assistance.

The Board explained, “Perhaps the respondent and counsel concluded that the

chance of success on the waiver would be improved if they did not contest

9 removability. The precise strategic reason is not important. What is significant is

that the respondent had the opportunity to contest the charge and he did not.”

II. STANDARD OF REVIEW

Two standards govern our review of this petition. We construe a motion to

remand that seeks to introduce new evidence as a motion to reopen, Chacku v.

U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008), and we review the denial

of a motion to reopen for an abuse of discretion, Gbaya v. U.S. Att’y Gen., 342

F.3d 1219, 1220 (11th Cir. 2003). “Factual determinations are reviewed under the

substantial evidence test.” Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th

Cir. 2010). “Under the substantial evidence test, we view the record evidence in

the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc). “[E]ven if the evidence could support multiple

conclusions, we must affirm the agency’s decision unless there is no reasonable

basis for that decision.” Id. at 1029.

III. DISCUSSION

“[T]o establish the ineffective assistance of counsel in the context of a

deportation hearing, an alien must establish that his or her counsel’s performance

was deficient to the point that it impinged the ‘fundamental fairness’ of the

10 hearing.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)

(quoting Barthold v. INS, 517 F.2d 689, 691 (5th Cir. 1975)). Ali must also

establish prejudice, which “exists when the performance of counsel is so

inadequate that there is a reasonable probability that but for the attorney’s error,

the outcome of the proceedings would have been different.” Dakane v. U.S. Att’y

Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).

Ali argues that Chea’s performance was deficient because Chea conceded

that Ali was removable as an alien who sought to procure an immigration benefit

by willfully misrepresenting a material fact, 8 U.S.C. §§ 1182(a)(6)(C)(i),

1227(a)(1)(A), but we disagree. Substantial evidence supports the finding by the

Board that Chea made a reasonable strategic decision when he conceded

removability for Ali’s misrepresentation. The Board reasoned that its earlier order

“made clear that [Ali] could contest removability under section 237(a)(1)(A) of the

Act, but [Ali], represented by counsel, elected not to do so.” An attorney does not

render ineffective assistance when he declines to make an argument that the

attorney “reasonably believed was . . . doomed to fail.” Knowles v. Mirzayance,

556 U.S. --, --, 129 S. Ct. 1411, 1420 (2009). The Supreme Court “has never

required defense counsel to pursue every claim or defense, regardless of its merit,

viability, or realistic chance for success,” id., nor is an attorney “required to have a

11 tactical reason—above and beyond a reasonable appraisal of a claim’s dismal

prospects for success—for recommending that a weak claim be dropped

altogether,” id. at --, 129 S. Ct. at 1422.

Any challenge Ali could have made to his removability based on the

misrepresentation charge would have been futile. This Court had already ruled

that Ali was removable for a willful misrepresentation, Ali, 443 F.3d at 812, and

the attorney who had represented Ali at his first hearing had conceded that Ali was

removable for the charge of misrepresentation. Moreover, at his second removal

hearing, Ali freely admitted that he had not been truthful “about the arrest issue”

on the application for permanent residence or adjustment of status. Ali admitted

that it was “completely wrong to hide something that actually occurred.” Ali

stated that he “ha[d] learned . . . never to lie” and to never make the mistake of

“falsifying anything.” Ali “admit[ted] to the fact that [he] ha[d] lied on th[e]

application” and said, “I admit to all the allegations that ha[ve] been given to me.”

Ali now argues that his testimony before the immigration judge should be

stricken, but he cites no authority that would allow this Court to strike his

testimony from the record. Ali’s pattern of lies has forced him to take a position

that lacks any legal support. In essence, Ali now asserts that he lied to the

immigration judge when he testified that he had lied on the application. But the

12 problem with that assertion is that Ali’s earlier concessions about the

misrepresentation on his application support the decision of the Board.

Chea’s strategic decision to concede Ali’s removability was reasonable.

Although Ali was removable for his earlier misrepresentation, he was still eligible

for discretionary waiver of removability under section 237(a)(1)(H) of the

Immigration Act, 8 U.S.C. § 1227(a)(1)(H). As the Board observed, “[p]erhaps

[Ali] and counsel concluded that the chance of success on the waiver would be

improved if they did not contest removability.” In the light of the record, which

included Ali’s earlier concessions, Chea could have reasonably concluded that

Ali’s best chance to avoid removal was to express remorse about the

misrepresentation with the hope that the immigration judge would look more

favorably on his request for discretionary relief. That the strategy did not work

does not mean that it was unreasonable.

Ali argues that Chea’s decision not to contest Ali’s removability was not a

strategic decision, but substantial evidence supports the contrary finding by the

Board. Ali contends that the letter from Chea proves that Chea thought that the

remand from the Board did not permit Ali to challenge removability under section

237(a)(1)(A) of the Act. Chea stated in his letter that Ali was able to challenge

removability on remand to the immigration judge, but “this only deals with the

13 aggravated felony charge[] because the pardon vitiates this charge. However, it is

clear that the pardon does not defeat the fraud charge because the fact is that the

arrest, plea[,] and probation were not disclosed on [Ali’s application].” Chea’s

letter also explained that “[t]he charge of removability [for] fraud or willful

misrepresentation of fact was decided many years ago” because Ali’s former

attorney “admitted the allegations on behalf of Mr. Ali” and sought protection

from removal under the Convention. The Board reasonably construed Chea’s

letter to explain that any challenge to the earlier concession of misrepresentation

would have been futile. See Adefemi, 386 F.3d at 1029.

Even if we were to accept Ali’s argument that Chea rendered deficient

performance when he conceded that Ali was removable, Ali would not be able to

prove prejudice. There is no “reasonable probability that but for the attorney’s

error, the outcome of the proceedings would have been different.” Dakane, 399

F.3d at 1274. In the light of this record, any effort by Ali to contest that he was

removable for willful misrepresentation would have failed.

IV. CONCLUSION

Ali’s petition for review is DENIED.