Ashraf Habib v. Loretta E. Lynch
787 F.3d 826
7th Cir.2015Background
- Habib, a 56-year-old Pakistani citizen, seeks review of a BIA denial of a motion to reopen based on ineffective assistance of counsel.
- Habib was charged with removability for obtaining immigration benefits via a material misrepresentation of his marital status in Pakistan.
- At an IJ hearing, Habib's attorney admitted, without Habib's consultation, that Habib's marriage to his U.S. citizen wife was invalid and that Habib had three children abroad.
- A divorce decree from Habib's Pakistani wife surfaced late, with the attorney claiming it was just obtained or previously submitted; its timing is disputed.
- The IJ relied on the admissions and other evidence to conclude Habib had obtained permanent residency by fraud and ordered removal.
- Habib moved to reopen on grounds of ineffective assistance; the Board denied, finding no prejudice and no deficient performance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Board's denial of reopening an abuse for prejudice from counsel's admission? | Habib argues the admission waived his defense and prejudiced his case. | Habib's position is that the admission did not prejudice him; the government contends no prejudice. | Yes; Board abused discretion; admission prejudiced Habib and remand warranted. |
| Did counsel's failure to timely submit the divorce decree constitute ineffective assistance? | The decree was crucial to proving a valid marriage and eligibility for adjustment. | Board relied on evidence and found no prejudice; timing was not shown to be deficient. | Yes; failure to timely submit the decree was deficient and prejudicial; remand required. |
| Did counsel's failure to request an interpreter prejudicial Habib? | Habib's language needs were not adequately addressed, potentially affecting testimony. | Habib did not identify specific testimony harmed by any language issue. | No explicit prejudice shown; but overall remand necessary for other issues. |
Key Cases Cited
- Solis-Chavez v. Holder, 662 F.3d 462 (7th Cir. 2011) (prejudice and fundamental unfairness standards in motion to reopen)
- Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006) (ineffective assistance when attorney's waiver eliminates avenues of relief)
- Kalejs v. I.N.S., 10 F.3d 441 (7th Cir. 1993) (presumption of removability from misrepresentation; rebuttable by eligibility evidence)
- Emokah v. Mukasey, 523 F.3d 110 (2d Cir. 2008) (rebutting presumption with eligibility evidence despite misrepresentation)
- Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005) (presumption and rebuttal framework for misrepresentation cases)
- Chen v. Holder, 782 F.3d 373 (7th Cir. 2015) (administrative decision review; disregard of potentially meritorious arguments on reopening)
- Boika v. Holder, 727 F.3d 735 (7th Cir. 2013) (motion to reopen based on ineffective assistance; Board's consideration standards)
- Moosa v. Holder, 644 F.3d 380 (7th Cir. 2011) (arguments on ineffective assistance and prejudice in asylum/removal context)