Kada v. Barr, No. 19-3218 (6th Cir. 2020)Annotate this Case
Kada, a Chaldean Christian from Iraq, immigrated with his family at age 12 as Lawful Permanent Residents. Kada was convicted of assault with a deadly weapon and carrying a concealed weapon. Charged with removability, 8 U.S.C. 1227(a)(2)(C), Kada was represented by Attorney Kent, who indicated that he would apply for Convention Against Torture (CAT) relief. Kent failed to file Kada’s CAT application or to request an extension. The IJ found Kada removable. Kent moved to reopen, arguing that hospitalizations prevented him from meeting the deadlines. Kent attached his medical records and included Kada’s CAT application and evidence. Kada explained that he had uncles who “disappeared under Saddam Hussein,” and other family members “kidnapped by ISIS,” that he is “completely Americanized,” knowing “little Arabic.” Kada argued that, if he were not tortured as a Chaldean Christian, he would be tortured by Iraqi authorities because of his criminal record and deportee status. The IJ denied Kada’s motion, finding that Kent had failed to establish his incapacity on or shortly before the filing deadline. The BIA denied an appeal.
With new counsel, Kada again moved to reopen, arguing ineffective assistance of counsel. Kada was removed. He provided a declaration that, in Iraq, men pointed weapons at him but let him go. Kada has since stayed hidden without access to medication. Kada’s friend reported the incident to the police and perpetrators were apprehended. They confessed that they wanted to kidnap Kada to blackmail his family. The BIA denied Kada’s motion, concluding that Kada had not demonstrated prejudice. The Sixth Circuit vacated. The BIA failed to account for evidence and prior decisions, involving nearly identical circumstances and did not analyze whether Kada showed a reasonable probability that, but for the ineffective assistance, he would have been entitled to remain in the U.S.