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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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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