Omar v. Mukasey, No. 06-1384 (2d Cir. 2008)
Annotate this Case
Download PDF
06-1384-ag Omar v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 1 2 3 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: February 20, 2008 Decided: February 29, 2008) Docket No. 06-1384-ag MAHMOUD IMAM MOHAMED OMAR, Petitioner, v. MICHAEL B. MUKASEY,1 Respondent. Before: KEARSE, CALABRESI and KATZMANN, Circuit Judges. Petition for review of denial by the Board of Immigration Appeals ( BIA ) of a motion to reopen immigration proceedings based on a claim of ineffective assistance of counsel. The petition for review is DENIED. 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey has been substituted for former Attorney General Alberto R. Gonzales as the respondent in this case. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 LAMIS J. DEEK, Brooklyn, N.Y., for Petitioner. DAVID BOBER, Assistant United States Attorney (Elizabeth Wolstein, Assistant United States Attorney, of counsel), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Respondent. PER CURIAM: Petitioner Mahmoud Imam Mohamed Omar ( Petitioner or Omar ) entered the United 15 States in November 1989 on a 6-month tourist visa. In April 2003, he received a Notice to 16 Appear charging him as subject to removal for overstaying his visa. 8 U.S.C. § 1227(a)(1)(B). 17 Omar conceded removability and sought cancellation of removal before Immigration Judge 18 ( IJ ) William F. Jankun. After an individual hearing, the IJ denied Omar s request, In re 19 Omar, No. A96 427 364 (Immig. Ct. N.Y. City Aug. 26, 2004), and Omar timely filed a pro se 20 notice of appeal of that decision to the Board of Immigration Appeals ( BIA ). No appellate 21 brief was filed on Omar s behalf, and the BIA therefore summarily dismissed Omar s appeal on 22 October 7, 2005. 23 In January 2006, Omar filed a motion to reopen his removal proceedings with the BIA, 24 based on ineffective assistance of counsel. Omar argued that Vernon Dutton, his non-attorney 25 immigration consultant, was to blame for two errors: that Omar s initial application for 26 cancellation of removal lacked reference to his visible and substantial physical illness and 27 handicap, and that a brief was not filed in the initial appeal to the BIA. In support of these 28 claims, Omar explained his efforts to comply with the requirements for reopening based on 29 ineffective assistance of counsel under In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). 2 1 He also argued that had he been able to introduce evidence about his health, he would have 2 been able to demonstrate the exceptional and extremely unusual hardship required for 3 cancellation of removal in his circumstances, unusual hardship to his U.S. citizen daughter. 8 4 U.S.C. § 1229b(b)(1). 5 The BIA denied Omar s motion to reopen on February 24, 2006. The BIA found that 6 Omar had not set forth in detail an agreement with Vernon Dutton that would show that Dutton 7 or anyone else had agreed to represent Omar on appeal. As indicia that there was not such 8 an agreement, the BIA noted that no notice of appearance had been filed by any individual 9 indicating that he or she was Omar s legal representative on appeal; that Omar had not lodged a 10 complaint with any disciplinary authorities against Dutton or any attorney for failure to appear 11 on his behalf on appeal; and that Omar had filed his notice of appeal pro se. The BIA also 12 found that Omar was not prejudiced by the errors he claimed, holding that it could not find that 13 these arguments [relating to Omar s health] would have likely changed the outcome of these 14 proceedings. In re Omar, No. A96 427 364 (B.I.A. Feb. 24, 2006). Omar now petitions this 15 Court for review of the BIA s decision. We assume the parties familiarity with the facts, 16 procedural history, and scope of the issues presented on appeal. 17 The government argues that we do not have jurisdiction to hear Omar s petition for 18 review, as, under Santos-Salazar v. U.S. Dep t of Justice, 400 F.3d 99, 101, 103 (2d Cir. 2005), 19 we cannot, on a petition for review of a motion to reopen, exercise jurisdiction over that which 20 we would not have had jurisdiction to review on direct appeal. This Santos-Salazar principle, 21 Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005), is clearly correct, but it does not deprive 22 us of jurisdiction over the claims raised in this case. 3 1 If Petitioner had, on direct appeal before the BIA, argued that his application for 2 cancellation of removal was not properly presented to the IJ because of ineffective assistance of 3 counsel, and the BIA had denied that claim, we would have had jurisdiction to consider it. A 4 claim of ineffective assistance of counsel is a constitutional claim. See Saleh v. U.S. Dep t of 5 Justice, 962 F.2d 234, 241 (2d Cir. 1992) ( [I]n order to prevail on an ineffectiveness claim, an 6 alien must show that his counsel s performance was so ineffective as to have impinged upon the 7 fundamental fairness of the hearing in violation of the fifth amendment due process clause. ) 8 (internal quotation marks omitted). We are not barred from exercising jurisdiction over an 9 ineffective assistance of counsel claim under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), 10 merely because in determining whether the petitioner was prejudiced by counsel s errors we 11 would have to consider whether the agency s underlying discretionary determination might 12 have been different had no errors occurred. See Jian Yun Zheng v. U.S. Dep t of Justice, 409 13 F.3d 43, 46 (2d Cir. 2005) ( Any BIA determination with respect to an ineffectiveness claim is 14 certainly subject to judicial review . . . . ). Ruling on an ineffective assistance of counsel claim 15 does not require us to substitute our discretion for that of the agency; it is simply a 16 determination that the alien was not given a fair hearing because of counsel s errors. 17 Whether a petitioner can bring a claim of ineffective assistance due to the actions of a 18 non-attorney immigration consultant, and the nature of any pleading requirements that might be 19 placed on such a claim, are questions of law that have not yet been settled in this Circuit and, 20 indeed, are currently being considered by the BIA. As a result, it cannot be said that the claim 21 of ineffective assistance of counsel at issue in this case is so insubstantial and frivolous as to 22 be inadequate to invoke federal-question jurisdiction. Barco-Sandoval v. Gonzales, __ F.3d __ 4 1 2008 WL 375988 at *5 (2d Cir. Jan. 25, 2008). See also Khan v. Gonzales, 495 F.3d 31, 35 (2d 2 Cir. 2007) (finding jurisdiction to review a colorable, though meritless, legal claim). 3 Because we would have had jurisdiction to consider the issue of ineffective assistance of 4 counsel on a petition to review the BIA s rejection of that claim in a direct appeal, we likewise 5 have jurisdiction to consider the issue on a timely petition to review the BIA s rejection of it in 6 denying a proper motion to reopen. See, e.g., Sepulveda, 407 F.3d at 64. 7 * * * * * 8 We review the BIA s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 9 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found in those 10 circumstances where the Board s decision provides no rational explanation, inexplicably 11 departs from established policies, is devoid of any reasoning, or contains only summary or 12 conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious 13 manner. Id. at 233-34 (quoting Zhao v. U.S. Dep t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)). 14 The BIA, in its decision, rejected Omar s ineffective assistance of counsel claim on two 15 grounds: (1) that, to whatever extent the Lozada requirements might apply to non-attorney 16 immigration consultants, Omar had failed to meet those requirements, and (2) that Omar had 17 failed to demonstrate that he was prejudiced by the alleged errors. The BIA s decision on each 18 of these grounds was neither arbitrary nor capricious. We therefore DENY the petition for review. 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
