Petition for Review from the Board of Immigration Appeals;
No. A 043 507 287.
Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan,
Brendan P. Hogan, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.
B. STRANCH, CIRCUIT JUDGE.
consolidated appeal, Petitioner Samir Kada seeks review of
orders from the Board of Immigration Appeals (BIA) denying
his motions to reopen. Kada argues that his due process
rights were violated due to his attorney's ineffective
assistance. In the alternative, he claims that his
attorney's serious health problems turned the removal
proceedings into a sham, violating his due process rights.
For the following reasons, we GRANT Kada's petition for
review in Case No. 19-3218 based on his ineffective
assistance of counsel claim. We VACATE the BIA's order
denying his second motion to reopen, and REMAND for further
proceedings in that case.
a Chaldean Christian from Iraq. He and his family immigrated
to the United States when he was twelve as Lawful Permanent
Residents. In 2017, Kada was convicted of several crimes,
including assault with a deadly weapon and carrying a
concealed weapon in violation of Michigan law. The Department
of Homeland Security placed him in removal proceedings on
March 27, 2018, alleging removability under 8 U.S.C. §
1227(a)(2)(C), based on his firearms convictions under
Richard Kent initially represented Kada in the removal
proceedings. At a hearing on April 17, 2018, Kada informed an
immigration judge (IJ) that he would apply for cancellation
of removal, withholding of removal, and protection under the
Convention Against Torture (CAT). The judge set the following
schedule: a May 1 deadline for Kada to submit an
administrative brief regarding his claim that his convictions
were not disqualifying aggravated felonies or particularly
serious crimes, a May 8 deadline to file his application for
relief, and a May 15 deadline for the Government to respond.
filed an untimely brief on Kada's behalf on May 3,
conceding that Kada's convictions were aggravated
felonies disqualifying him from asylum and cancellation of
removal but claiming that Kada remained eligible for
withholding of removal under the CAT because the convictions
were not particularly serious crimes. The brief acknowledged
Kada's upcoming deadline to file his applications with
the court, noting "Respondent has application for relief
in process for Withholding, [and] his next Individual
Calendar court date is to address that issue." Kent
failed, however, to file Kada's application for relief
under the CAT or to request an extension of time by the May 8
filing deadline. After the Government responded to Kada's
brief, on May 16, 2018, the IJ issued a written decision
determining that Kada was removable as charged, deeming his
applications for relief abandoned, and ordering him to be
removed to Iraq.
First Motion to Reopen
filed a timely motion to reconsider and reopen. He asserted
that his ongoing serious health problems prevented him from
meeting the deadlines. Kent was hospitalized from February 5
through 11 for a serious illness and experienced a "slow
relapse," which ultimately resulted in multiple
hospitalizations throughout May and into June, specifically
May 10-17; 18- 22; 27-29; and June 5. Kent attached his
medical records and included Kada's CAT application,
evidence, and witness list.
application for relief under the CAT attached to the motion
to reopen, Kada explained that he had five uncles who
"disappeared under Saddam Hussein," and other
members of his family "were kidnapped by ISIS and held
hostage for money." He alleged that he is
"completely Americanized," knows "little
Arabic" and "lack[s] any cultural education as to
life in Iraq." He emphasized his status as a Chaldean
Christian, explaining "The U.S. pullout led to ISIS
domination of the Chaldean regions of Iraq, and that was
followed by their being destroyed by the Shia dominated
Popular Mobilization Forces [PMF], who are systematically
oppressing Iraqi Christians just as badly as ISIS did."
Kada also submitted country conditions reports regarding the
sectarian conflict in Iraq, including evidence that internal
relocation is not available in Iraq and should not be used as
a basis to deny a stay of removal. Kada also argued that, if
he were ...