Sami K. Berri Tina Orham Berri v. Alberto R. Gonzales, Attorney General

468 F.3d 390, 2006 U.S. App. LEXIS 28345, 2006 WL 3313943
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 16, 2006
Docket05-4045
StatusPublished
Cited by89 cases

This text of 468 F.3d 390 (Sami K. Berri Tina Orham Berri v. Alberto R. Gonzales, Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sami K. Berri Tina Orham Berri v. Alberto R. Gonzales, Attorney General, 468 F.3d 390, 2006 U.S. App. LEXIS 28345, 2006 WL 3313943 (6th Cir. 2006).

Opinion

*393 OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Husband and wife Sami and Tina Berri, citizens of Lebanon, claim eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. The Immigration Judge (IJ) denied their claims, and a member of the Board of Immigration Appeals (BIA) affirmed without opinion. The Berris appeal the denial of their claims. They also appeal the IJ’s denial of their motion for continuance and the BIA’s affirmance without opinion. For the following reasons, we DENY the Ber-ris’ petition for review. We also AFFIRMÍ the IJ’s denial of a continuance and the BIA’s use of its affirmance without opinion procedure.

Petitioner Sami Berri (“Sami”) is a native and citizen of Lebanon. His wife, Petitioner Tina Berri (“Tina”), is a native Iraqi and a citizen of Lebanon. In 1970, because he was having financial problems, Sami moved to Kuwait in order to work. In 1979 Sami opened his own business under the sponsorship of a Kuwaiti citizen. Sami held a work permit which only allowed him to remain for five years, but Sami continually renewed the permit.

Sami and Tina met in Kuwait, and married in 1978. During his testimony before the IJ, Sami first stated that because he was Shiite Muslim and she was a Syrian Christian, they could not marry in Kuwait, but rather, had to elope to Lebanon. However, when later questioned by the IJ, Sami stated that they were in fact legally married in Kuwait. Tina testified that she had to feign converting to Islam in order to get married. In 1979, Tina gave birth to a daughter, Saly.

According to the Berris, their problems began in Kuwait. Sami testified that in 1988, while going home from work on his lunch break, Kuwaiti security forces arrested him because they believed he was a member of Amal, 1 a group believed to be working to overthrow the Kuwaiti government. For nineteen days, Sami was incarcerated in a small room and treated harshly. Sami and Tina both testified that during this period, he was not allowed to have visitors, although in his asylum application Sami stated that Tina visited him while he was captive.

After his confinement, Sami was transferred to a hospital where he was force-fed, and then moved to a detention camp with 300 other individuals for one or two weéks. With the permission of Kuwaiti Government officials, the Berri family was allowed to leave Kuwait and return to Lebanon. Sami testified that he had to leave everything behind in Kuwait, although in fact, he already had an apartment in Beirut. The Berris returned to Lebanon while the country was in the midst of a civil war, and their apartment was located on the so-called “green line” between the East and West Beirut, where Hezbollah militias maintained checkpoints.

Sami’s testimony regarding the Hezbollah militia’s treatment of him varies. He testified that on the first day he arrived at his apartment, militia members accused him of being an Amal member (on the basis of his surname) sent to spy on them, and demanded that Sami give them money to support the militia. Sami initially testified that he was never arrested or detained and left Beirut after the militia threatened him two times, but later testified that the militia was living in the same *394 building as his family and came to his apartment up to ten times a day. He also testified that the militia had taken him to a detention room where he was threatened, kicked, slapped, pushed and beaten to the point that he bled.

The Berris also alleged that the militia was responsible for bombing their car and apartment, although outside of their testimony, they provided no evidence of this happening. With respect to the car, Sami testified that it was blown up during the daytime while they were away from the house. However, Tina testified that their car was bombed in the middle of the night while the family was sleeping upstairs above the building’s garage. In order to escape the Hezbollah militia, the family sometimes stayed with friends in the suburbs of Beirut. Tina testified that despite being terrified while in Beirut, they were safe at their friends’ home.

In June 1988, the Berris went to the United States in order to escape these threats. Using his business contacts in the United States, Sami obtained a non-immigrant visa for business. Tina entered the United States as a non-immigrant visitor for pleasure. Sami reentered Lebanon after that for the purpose of transferring money he had in Lebanese bank accounts. According to stamps on his passport and his testimony, it appears that he went back to Lebanon from the United States on July 29, 1988, then went to Syria and reentered Lebanon in early August, and then came again to Lebanon from the United States in October 1988. His final entry into the United States was in November 1988. During his travels to Lebanon, he did not go back to the same area of Beirut that he lived in, and was able to enter and leave unharmed.

This case was commenced on November 16, 1999, when the INS issued Notices to Appear to the Berris for remaining in the United States longer than permitted under their non-immigrant visas. After a series of postponements, the case went before the IJ on January 20, 2004. The Berris had obtained new counsel less than two weeks prior to the hearing date, and filed an untimely motion for continuance. The IJ refused to grant a continuance. The IJ granted their request for voluntary departure, but denied their claims to asylum, withholding of removal, and for relief under the Convention Against Torture.

On August 2, 2005, a member of the Board of Immigration Appeals affirmed the Id’s decision without opinion. The Berris filed this timely appeal.

II

We review an IJ’s denial of a continuance for abuse of discretion. Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir.2006). The Berris’ case has been pending since 1999. Due to a combination of their requests and rescheduling for priority cases, their hearing was postponed several times. One to two weeks before their January 2004 hearing was scheduled, the Berris obtained new counsel to represent them. Seven days before the hearing, counsel filed a motion for continuance with the court for the purpose of reviewing the record more thoroughly, speaking with the Berris, and retaining an expert witness. The Berris concede that their motion was untimely.

Even if a motion is untimely, an IJ may grant a motion for continuance if good cause is shown. 8 C.F.R. § 1003.29. The Berris contend that they have shown good cause, and allege that the IJ was more concerned with the fact the docket was booked until 2005, and that the IJ simply did not want the Berris to receive the benefit of further delay.

*395 We agree with the IJ that the Berris failed to show good cause. Despite the fact that this case was pending since 1999 and that the hearing date of January 2004 was scheduled nearly two years prior, the Berris did not obtain new counsel until one to two weeks before the hearing date.

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Bluebook (online)
468 F.3d 390, 2006 U.S. App. LEXIS 28345, 2006 WL 3313943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sami-k-berri-tina-orham-berri-v-alberto-r-gonzales-attorney-general-ca6-2006.