James v. Ashcroft

79 F. App'x 228
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 22, 2003
DocketNo. 02-2910
StatusPublished

This text of 79 F. App'x 228 (James v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. Ashcroft, 79 F. App'x 228 (7th Cir. 2003).

Opinion

[230]*230ORDER

Indian citizen Maya Robert James entered the United States in 1995 as a non-immigrant visitor for pleasure, but overstayed her visa. In June 1997 the former Immigration and Naturalization Service (INS) began removal proceedings, which prompted James to renew a previously filed application for asylum, withholding of removal, protection under the Convention Against Torture, or voluntary departure. In March 1999 an immigration judge (IJ) allowed for voluntary departure but otherwise denied James’s application, a decision affirmed summarily by the Board of Immigration Appeals (BIA) in June 2002. James petitions here for further review, which we deny.

At the start of the hearing on her application in March 1999, James was represented by Sakina Carbide. Carbide, though, promptly informed the IJ that James had just retained a new California attorney who wanted the proceeding transferred from the Chicago area to California. Carbide informed the IJ that James wished to continue her case, and then moved to withdraw. The IJ replied that he would not force Carbide to stay in the case, but neither would he continue the matter further. James and Carbide then briefly conferred, after which Carbide renewed both the motion for a continuance and her own motion to withdraw. The IJ allowed the latter but told James that her hearing would proceed because the case was “as ready as it will be.” The IJ noted that he had not received anything from James’s new attorney, that James had not provided proper notice of her request for continuance, and that James’s case already had been continued six times.

During the hearing that followed, the IJ questioned James through an interpreter. James first clarified that she is Christian rather than Sikh, as was erroneously stated on her asylum application. Regarding past persecution, James testified that in August 1993 she was kidnapped on her walk home from school by four or five unknown men wearing khaki police uniforms and driven to a local police station where they beat and raped her. James may also have been raped in the van before arriving at the police station, but her testimony is inconsistent. The men did not explain why they were attacking her, but warned James not to report the incident. James told the IJ that she ultimately lost consciousness and woke up in the hospital where her husband works as an administrator. James added that afterward she followed the advice of a police officer she knew, who recommended during a private conversation that she not report the incident.

James was not assaulted again, but afterwards she began receiving threatening phone calls at home, which her three daughters occasionally answered. James conceded, however, that her husband and daughters remain in India and-aside from unrelated verbal harassment of her daughters-have not been harassed or attacked.

When the IJ pressed James about a motive for the attack, she speculated that it was related to her husband’s work at the hospital. James explained that some time before she was assaulted, persons she believed to be either police officers, imposters, or possibly even terrorists had brought an unconscious man to the hospital. Her husband, she said, had admitted the man as a patient and arranged for him to be seen by a physician. Later, though, a group of men-possibly the same men-had come to the hospital and demanded that her husband remove the patient’s oxygen. James cited her husband’s refusal as a possible reason for the attack. She offered no other reasons.

[231]*231In denying James’s application, the IJ explained that he had tried several times without success to elicit from her a motive for the assault that might allow the attack to be seen as persecution based on one of the listed motivations. The IJ added that James’s documentary evidence pointed only to general violence in India and not to police violence targeted at women. Finally, the IJ noted that James’s husband and daughters had remained in India unharmed. The IJ, though openly skeptical about portions of James’s testimony, accepted it as true for purposes of his decision.

In petitioning for review James first argues that the IJ abused his discretion in denying a continuance, and thus effectively deprived her of counsel’s assistance and prevented her from fully and fairly presenting her case. An IJ has discretion to grant or deny a continuance, Hassan v. INS, 110 F.3d 490, 492 (7th Cir.1997), and we will uphold the ruling unless it lacks rational explanation, departs inexplicably from established policies, or rests on an impermissible basis. Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir.1991).

James has demonstrated no abuse of discretion. She had already been granted multiple continuances and did not alert the IJ that she wanted another continuance until after the hearing had started, so the IJ rationally declined to further delay the matter. Nor has James shown that the IJ’s ruling left her unrepresented and unable to present her case. Asylum applicants have no Sixth Amendment right to counsel, see Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998), but are entitled to a fundamentally fair hearing under the Due Process Clause of the Fifth Amendment, Castanedar-Suarez v. INS, 993 F.2d 142, 144 (7th Cir.1993). The petitioner must be afforded an opportunity to hire counsel of her own choice, 8 U.S.C. § 1362, but James, who came to the hearing with retained counsel and fired her after the hearing started, had more than sufficient opportunity to secure counsel for her hearing. Regardless, a petitioner claiming a due process violation must produce concrete evidence that being denied a continuance might have affected the outcome of the hearing. Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir.2000). In this instance James points to no supporting evidence that she wished to present but could not without a continuance, nor does she identify any reason to conclude that the outcome of the hearing would have been different had she been allowed more time to replace Carbide after discharging her.

James also argues that the IJ erred in finding that she was ineligible for asylum. The Attorney General has discretion to grant asylum to a refugee, defined as an alien who is unable or unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); 8 U.S.C. § 1158(b)(1). Persecution can include sexual assault if committed for one of the statutorily protected reasons. See Angoucheva v. INS, 106 F.3d 781, 789 (7th Cir.1997).

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Related

Tenny Hassan v. Immigration and Naturalization Service
110 F.3d 490 (Seventh Circuit, 1997)
Ahmad Mousa v. Immigration and Naturalization Service
223 F.3d 425 (Seventh Circuit, 2000)
Natalia Kharkhan v. John D. Ashcroft
336 F.3d 601 (Seventh Circuit, 2003)
A-E-M
21 I. & N. Dec. 1157 (Board of Immigration Appeals, 1998)
S-P
21 I. & N. Dec. 486 (Board of Immigration Appeals, 1996)
FUENTES
19 I. & N. Dec. 658 (Board of Immigration Appeals, 1988)

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79 F. App'x 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-ashcroft-ca7-2003.