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Kada v. Barr

United States Court of Appeals, Sixth Circuit

January 10, 2020

Samir Yousif Kada, Petitioner,
William P. Barr, Attorney General, Respondent.

          On Petition for Review from the Board of Immigration Appeals; No. A 043 507 287.

         ON BRIEF:

          Russell Reid Abrutyn, ABRUTYN LAW PLLC, Berkley, Michigan, for Petitioner.

          Brendan P. Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.



         In this 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.

         I. BACKGROUND

         Kada is 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 Michigan law.

         Attorney 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.

         Kent 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.

         A. First Motion to Reopen

         Kent 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.

         In the 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 ...

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