Hassan v. Atty Gen USA

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

10-21-2005

Hassan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3738

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-3738

MOHAMED AHMED HASSAN,
a/k/a
Mohamed Ahmed Hasan Ghorab,

Petitioner

v.

*ALBERTO R. GONZALES, Attorney General of the United States,

Respondent

*Substituted pursuant to Rule 43c, F.R.A.P.

On Appeal from an Order entered by
The Board of Immigration Appeals
No. A78-832-208

Submitted Under Third Circuit LAR 34.1(a)
September 27, 2005

Before: ALITO, AMBRO, and LOURIE,** Circuit Judges

(Opinion filed: October 21, 2005)

OPINION

** Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
AMBRO, Circuit Judge

Mohamed Hassan Ghorab, a citizen of Egypt, petitions for review of a final order

of the Board of Immigration Appeals (Board) affirming, without opinion, an Immigration

Judge’s ruling that Ghorab had waived his application for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). For the reasons

provided below, we deny the petition.

I. Factual Background and Procedural History

Ghorab initially entered the United States in March, 2000, on a non-immigrant

tourist visa. On August 11, 2000, he filed an application to register permanent residence

or adjust status (Form I-485). In addition, a petition for alien relative (Form I-130) was

filed on his behalf with the appropriate District Director within the Department of

Homeland Security (DHS). Both petitions were denied on September 20, 2001. On

March 25, 2003, DHS served Ghorab with a Notice to Appear, charging him as

removable from the United States under Immigration and Nationality Act (INA) §

237(a)(1)(B), 8 U.S.C. § 1227, for overstaying his tourist visa.

Subsequent to serving him with the Notice to Appear, DHS arrested and detained

Ghorab. While in DHS custody, Ghorab was provided a rights warning and he agreed to

answer questions. He advised DHS agents that, as an Egyptian imam, he was questioned

about terrorism by Egyptian national security officers approximately once a year. Ghorab

explained that this procedure was routine for imams in his home country. He further

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reported that he had never been arrested by law enforcement, he left Egypt due to

financial problems, and he believed he would have no trouble returning home. About two

months after his arrest, Ghorab filed a second Form I-130 petition, based on an alleged

marriage to the same woman as detailed in his first I-130 petition.

Ghorab appeared with counsel before an Immigration Judge (IJ) in Philadelphia,

Pennsylvania on June 4, 2003, for the first hearing in his removal proceedings. During

that hearing, Ghorab conceded the factual allegations and charge enumerated in his

Notice to Appear. Because Ghorab had a second I-130 petition pending, the IJ continued

the removal hearing until September 3, 2003. The IJ also ordered Ghorab to file all other

relief applications prior to the September hearing.

At the September 3 hearing, the IJ voiced his understanding that Ghorab was not

seeking asylum, withholding of removal, or protection pursuant to the CAT. The IJ

further communicated that it appeared that Ghorab sought adjustment of status solely

through a marriage or religious worker petition. Ghorab’s counsel stated that the IJ was

correct in his statement of the specific forms of relief sought by his client.

DHS filed a notice of intent to deny Ghorab’s Form I-130 petition on September 3.

Over a Government objection, the IJ continued the hearing for an adjudication of the

notice to deny the I-130. The purpose of the continuance was to provide Ghorab time to

file rebuttal evidence to support his petition and to await a final decision on that matter.

On September 24, 2003, Ghorab filed a petition for benefits as a special religious

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worker (Form I-360). DHS denied Ghorab’s I-130 petition on October 20, 2003 due to a

finding of marriage fraud. The marriage fraud determination constituted a statutory bar to

Ghorab’s Form I-360 petition.

The removal proceedings resumed on December 17, 2003. Ghorab was

represented by new counsel. His previous attorney, Joseph Simon, had withdrawn on

October 8, 2003. Ghorab’s new counsel advised the IJ that he had discussed with his

client grounds for seeking asylum. He added that Ghorab had not discussed the

possibility of seeking asylum with his previous counsel because, at the time, he had other

petitions pending. Counsel further indicated that members of Ghorab’s Islamic sect had

been arrested in Egypt and Morocco during the summer of 2003 in response to a terrorist

bombing in Morocco committed by members of that sect. Counsel made no

representation, however, that Ghorab was unaware of those arrests prior to the September

3 hearing. He instead reported that previous counsel had failed to advise Ghorab that the

arrests could be used as a basis for an asylum application.

Counsel argued that the arrests showed changed country conditions, and thus

Ghorab should be permitted to file asylum and withholding of removal applications. The

Government disagreed, maintaining that because the Court had previously ordered

Ghorab to file all relief applications by the September 3 hearing, any applications filed

subsequent to that date should be deemed waived. The IJ continued the hearing to allow

Ghorab to file an affidavit from previous counsel, submit additional filings, and review

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the tape recordings of the earlier hearings.

On December 30, 2003, the Government filed a motion to deem the filing of

Ghorab’s application for asylum, withholding of removal, and protection under the CAT

waived, citing 8 C.F.R. § 1003.31(c). According to the Government, Ghorab had

affirmatively rejected the relief he was now seeking in his September 3 hearing by

specifically stating that he was not seeking asylum. Ghorab nonetheless filed an

application for asylum during his final removal hearing on January 7, 2004, citing

religious persecution and fear of torture as grounds for relief. In support of his petition,

Ghorab attached an affidavit in which he made the following claims: he is a member of

Dawaa Salafia, a peaceful Islamic sect; Egyptian police took control of his mosque and

gave it to their government prior to his arrival in the United States; police had

interrogated him on numerous occasions for periods of up to one week; Egyptian national

security imprisoned twenty-four sect members in November 2002 and the leader of the

sect in December 2002; the Egyptian government detained the sect leader for a lengthy

period of time without filing charges; and he and members of the sect had been arrested

and harassed by Egyptian police allegedly for being terrorists. Ghorab also filed several

documents to support his application, including the Department of State human rights

report, several Egyptian newspaper articles, a report by Amnesty International, and an

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affidavit from his previous counsel, Mr. Simon.1

The IJ issued an Order and Findings of Fact on February 23, 2004, granting the

Government’s motion to deem relief applications waived and ordering Ghorab removed

to Egypt. Ghorab timely appealed to the Board, which affirmed the decision without

opinion. This appeal followed.

II. Jurisdiction and Standard of Review

We have jurisdiction to review final decisions of the Board under Section 242(b)

of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(1). See Smriko v.

Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). The Board’s jurisdiction arose under 8

C.F.R. § 1003.1(b)(3). Venue is proper because the proceedings occurred in Philadelphia,

Pennsylvania. INA § 242(b)(2); 8 U.S.C. § 1252(b)(2).

Although we generally review orders of the BIA, Abdulai v. Ashcroft, 239 F.3d

542, 548-49 (3d Cir. 2001), we also review IJ orders if the BIA affirms without opinion.

See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review factual

findings under a substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B) (codifying

INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). Legal determinations are reviewed

de novo. Smriko, 387 F.3d at 282 (3d Cir. 2004) (quoting Wang v. Ashcroft, 368 F.3d

1
Simon testified that, although Ghorab was beyond the one-year deadline for filing
an asylum application, he had questioned his client about a potential asylum claim. He
further declared that he did not pursue any asylum claim because he had no information to
support such an application.

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347, 349 (3d Cir. 2004)).

III. Discussion

Ghorab contends he did not waive his right to apply for asylum because the IJ

failed to impose a firm deadline for filing additional applications for relief. Immigration

judges are entitled to establish and enforce deadlines in immigration proceedings.

Pursuant to 8 C.F.R. § 1003.31(c), an

. . . [i]mmigration Judge may set and extend time limits for the filing of
applications and related documents and responses thereto, if any. If an application
or document is not filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be deemed waived.

Because an IJ’s decision regarding waiver is discretionary, it is reviewed for an abuse of

discretion. See Witter v. INS, 113 F.3d 549, 55-56 (5th Cir. 1997). The IJ’s decision will

not be disturbed unless it is “arbitrary, irrational, or contrary to law.” Tipu v. Immigration

& Naturalization Serv., 20 F.3d 580, 582 (3d Cir. 1994)).

The IJ established September 3, 2003, as the filing deadline for all applications of

relief during the Master Calendar hearing on June 4, 2003, when he instructed that

[b]y the next hearing, the respondent is due to file any relief applications that he
believes he would be eligible to, depending on what happens with the I-130, unless
there is an I-360 pending with regard to religious work, then the Court would want
proof of that. But, in any event, we will meet again on September 3, 2003, on my
afternoon docket. If there is an adjudication on the I-130 before that date, please
inform the Court.

App. at 177 (emphasis added). Ghorab contends the IJ was merely discussing an

adjustment of status application during this exchange. Such an interpretation, however,

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glosses over the IJ’s mandate to submit “any relief applications that [Ghorab] believes he

would be eligible to.” Id. Ghorab’s argument is further belied by a discussion that

occurred between the IJ and the parties at the September 3 hearing. During that hearing,

the IJ specifically confirmed that the only relief Ghorab sought was the Form I-130

petition and possibly a Form I-360 petition. Id. at 181. Indeed, as the following

exchange makes clear, the IJ expressly queried whether Ghorab intended to file an asylum

application:

[Q]: It is my understanding, Mr. Simon, as an officer of the Court your client is
seeking adjustment of status, either through the marriage or through a religious
worker petition, if such a petition were to be approved, and that he is not seeking
asylum, withholding of removal, or withholding under the Convention Against
Torture. Is that correct?
[A]: That’s my understanding, Your Honor.

Id. Thus, the record establishes that the IJ did not abuse his discretion by enforcing the

September 3 deadline for filing any relief applications, including a petition for asylum.

Even assuming, for the sake of discussion, Ghorab is correct that the IJ’s directives failed

to establish a firm deadline of September 3 for filing all applications for relief, the

District Court did not err in denying his asylum petition because, in any event, it was

time-barred by statute. See 8 U.S.C. § 1158(a)(2)(B).

We are also unpersuaded by Ghorab’s argument that the IJ was compelled to allow

him to file his asylum application late due to changed country conditions. As noted

above, an alien must prove that he filed his asylum application within one year of arrival

in the United States. 8 U.S.C. § 1158(a)(2)(B). However, if the alien can establish that

8
there are “changed circumstances which materially affect the applicant’s eligibility for

asylum or extraordinary circumstances relating to the delay in filing an application,”

failure to file the application within the one year period may be excused. 8 U.S.C. §

1158(a)(2)(D). The plain language of the statute demonstrates that the “changed

circumstances” exception applies to the one-year statute of limitations delineated in

Section 1158(a)(2)(B), not to IJ-imposed time limits falling well after the one year period

has expired. Thus, Ghorab’s reliance on the changed circumstances exception is ill-

placed.

Moreover, even if the exception did apply here, Ghorab failed to present sufficient

evidence of changed conditions in Egypt to warrant a late filing of his asylum application.

Indeed, Ghorab’s asylum petition and claim for protection under the CAT were based

entirely on events that took place well in advance of the September 3 filing deadline. As

such, they cannot constitute changed country conditions. In sum, the record establishes

that the IJ properly exercised his discretion under the immigration regulations to enforce

the deadline he set for filing “any relief applications” and that decision was bolstered by

record evidence demonstrating that Ghorab’s new circumstances long predated his

removal proceedings. Accordingly, Ghorab has not shown that the IJ’s discretionary

decision was somehow arbitrary, irrational, or contrary to law. See Tipu, 20 F.3d at 582.

Ghorab also contends that he was denied due process because his counsel was

ineffective. “To advance a successful claim for ineffective assistance of counsel, an alien

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must demonstrate prejudice – he ‘must show that he was prevented from reasonably

presenting his case.’” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2002) (citing

Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)). Ghorab has not met this burden.

The record makes clear that there was no evidence on which Ghorab’s counsel could have

properly relied as the basis for an asylum application. Simply stated, Ghorab failed to file

an asylum application within the limitations period and cannot prove changed country

conditions that would warrant an exception from the statutory time bar. Because

counsel’s failure to petition for asylum did not prejudice Ghorab, his ineffectiveness

claim must fail.

Ghorab’s final argument is that the IJ improperly made credibility determinations

without making specific findings and citing reasons. It is certainly the law of our Circuit

that, when making credibility determinations, an IJ must state specific and cogent reasons.

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Contrary to Ghorab’s contentions,

there is nothing in the record to suggest the IJ made any credibility determinations.

Rather, he decided Ghorab’s ineffective assistance of counsel claim on the merits. That

is, the IJ ruled that, even if everything Ghorab claimed in his affidavit was true, he still

could not prevail on the merits because there was insufficient evidence to support an

asylum petition.

* * * * *

For the reasons provided above, we deny Ghorab’s petition for review.

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