Ali v. U.S. Attorney GeneralAli v. U.S. Attorney General
ed its right to procedural due process when it awarded exclusive use of the Exposé mark to Jurado, Curless, Bruno, and Walking Distance even though they had not requested a declaration that they owned the mark, but we disagree. Trademark law ordinarily does not permit two entities to share a mark due to the consumer confusion that would ensuе, see 2 McCarthy, supra, § 16:40, pp. 16-76.1 to 77, and the complaint filed by Crystal invited the district court to determine ownership of the mark as between these parties.
IV. CONCLUSION
We AFFIRM the judgment in favor of Jurado, Weiss, Bruno, and Walking Distance.
Salim Mohammed ALI, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
No. 10-11290.
United States Court of Appeals, Eleventh Circuit.
June 22, 2011.
Ada E. Bosque, Mona Maria Yousif, Catherine B. Bye, Daniel E. Goldman, William C. Peachey, Krystal Samuels, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Hernando Bernal, Jr., Barbas Nunez Sanders Butler & Hovsepian, Tampa, FL, Alfie Owens, DHS Chief Counsel, Atlanta, GA, for Respondent.
Before PRYOR and COX, Circuit Judges, and PANNELL,* District Judge.
PRYOR, Circuit Judge:
The issue presented by this petition for review is whether an attorney rendered ineffective assistance when he conceded, at a second removal hearing, that Salim Mohammed Ali had sought to procure an immigration benefit through willful misrepresentation of a mаterial fact in violation of the Immigration and Nationality
I. BACKGROUND
In July 1991, Ali, a native and citizen of Pakistan, entered the United States as a non-immigrant visitor, and less than two years later, a grand jury in the Superior Court of Clayton County, Georgia, indicted Ali on two counts of child molestation. Ali pleaded guilty and was sentenced to five years of probation. The superior court granted Ali‘s petition for discharge under the First Offender Act of Georgia,
Ali filed an application for permanent residence or adjustment of status in October 1998 and answered “No” in response to the question whether he had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In May 2002, the Immigration and Naturalization Service issued to Ali a notice to appear at a removal hearing on the charge that he was removable under section 237(a)(2)(A)(iii) of the Immigration Act as an alien convicted of an aggravated felony,
The Service filed additional charges against Ali under section 237(a)(1)(A) of the Immigration Act as an alien who had been convicted of a crime involving moral turpitude,
In October 2003, Ali filed an extraordinary motion for a new trial in the Georgia court and argued that, when he had pleaded guilty to child molestation, he had thought that his plea would mean that he would have “no criminal record, either in the eyes of the State of Georgia or in the eyes of the government of the United States.” The Georgia court granted Ali‘s motion and later granted the motion of the district attorney to nolle prosse the molestation charges because of “the circumstances of the case, the age of the case, the status of the defendant, and the total implications of a retrial.”
Ali filed with the Board a motion to reopen his removal proceedings. The Board denied the motion because Ali had failed to establish by sufficient evidence that he no longer had a conviction for immigration purposes. The Board also reasoned that, even if Ali had presented sufficient evidence of a pardon, he would nonetheless be removable because of the misrepresentation on his application for permanent residence or adjustment of status.
We denied Ali‘s petition for review and held that the Board did not abuse its discretion when it denied Ali‘s motion to reopen the removal proceedings. Ali, 443 F.3d at 814. We agreed with the Board that, even if Ali had presented sufficient evidence that he no longer had a conviction, he was nonetheless removable “as an ‘alien who, by fraud or willfully misrepresenting a material fact,’ sought to procure an immigration benefit.” Id. at 812 (quoting
In September 2006, Ali, represented by new counsel, Socheat Chea, filed with the Board another motion to reopen Ali‘s removal proceedings and submitted a certified copy of a pardon of Ali by the State of Georgia. Ali did not contest the charge of willful misrepresentation, but instead argued that he was eligible for discretionary relief from removal under section 237(a)(1)(H) of the Immigration Act,
In May 2008, Ali, reprеsented by Chea, appeared before the immigration judge. At the commencement of the hearing, the government withdrew the charges of removal based on an aggravated felony. Chea conceded that Ali was removable under section 237(a)(1)(A) of the Immigration Act for the willful misrepresentation,
At the new removal hearing before the immigration judge, Chea asked Ali whether
Near the end of the hearing, the immigration judge observed that Ali‘s “[i]mmigration history is fraught with misrepresentations ... before the Court, before the U.S. Counselor Embassy, at the port of entry, ... on the [application for permanent residence or adjustment of status,] and beforе [the immigration judge] at a prior hearing.” In response, Ali asked the immigration judge to be lenient and expressed remorse: “I have, I admit I have done wrong, I admit to the fact that I have lied on that application, I admit to all the allegations that [have] been given to me. All I am seeking is mercy and forgiveness.”
In July 2008, Ali hired his third attorney, Matthew Weber, who filed a motion to withdraw Chea‘s concession of removability. In August 2008, the immigration judge issued a written decision and ruled that Ali was removable under section 237(a)(1)(A) of the Immigration Act for procuring admission to the United States by fraud or willful misrepresentation,
Ali took to heart the adage “if at first you don‘t succeed, try, try again,” and again appealed to the Board in January 2009. Ali argued that the immigration judge had clearly erred when he ordered Ali‘s removal. Ali later also filed a motion to remand and terminate proceedings due to ineffective assistance of counsel. Ali argued that Chea had rendered ineffective assistance when he had conceded that Ali‘s misrepresentation on the application for permanent residence or adjustment of status was willful. Ali argued that, if Chea had not made that concession, the government would have been unable to prove that Ali had been removable. Ali attached to his motion a letter from Chea responding to the accusations of ineffective assistance. In the letter, Chea explained that he had conceded that Ali was removable for the willful misrepresentation charge because “it is clear that the pardon does not defeat the fraud charge because the fact is that the arrest, plea and probation were not disclosed on [the aрplication for permanent residence or adjustment of status].” Chea also explained that Ali‘s previous attorney had already conceded that Ali was removable for the willful misrepresentation when Ali sought relief under the Convention at the first removal hearing.
The Board affirmed the decision of the immigration judge and dismissed Ali‘s appeal. The Board explained that, bеsides Chea‘s concession before the immigration judge, Ali had testified and had “admitted that he made several misrepresentations, and that he [had] lied on the ... adjustment of status application.” The Board concluded that Chea had made a strategic decision not to contest the misrepresentation charges and had not rendered ineffective
II. STANDARD OF REVIEW
Two standards govern our review of this petitiоn. We construe a motion to remand that seeks to introduce new evidence as a motion to reopen, Chacku v. U.S. Att‘y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008), and we review the denial of a motion to reopen for an abuse of discretion, Gbaya v. U.S. Att‘y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “Factual determinations are reviewed under the substantial evidence test.” Diallo v. U.S. Att‘y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). “Under the substantial evidence test, we view the record evidence in the light most favorable to the agency‘s decision and draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). “[E]ven if the evidence could support multiple conclusions, we must affirm the agency‘s decision unless there is no reasonable basis for that decision.” Id. at 1029.
III. DISCUSSION
“[T]o establish the ineffective assistance of counsel in the context of a deportation hearing, an aliеn must establish that his or her counsel‘s performance was deficient to the point that it impinged the ‘fundamental fairness’ of the hearing.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (quoting Barthold v. INS, 517 F.2d 689, 691 (5th Cir. 1975)). Ali must also establish prejudice, which “exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney‘s error, the outcome of the proceedings would have been different.” Dakane v. U.S. Att‘y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).
Ali argues that Chea‘s performance was deficient because Chea conceded that Ali was removable as an alien who sought to procure an immigration benefit by willfully misrepresenting a material fact,
Any challenge Ali could have made to his removability based on the misrepresentation charge would have been futile. This Court had already ruled that Ali was removable for a willful misrepresentation, Ali, 443 F.3d at 812, and the attorney who had represented Ali at his first hearing had conceded that Ali was removable for the charge of misrepresentation. Moreover, at his second removal hearing, Ali freely admitted that he had not been
Ali now argues that his testimony before the immigration judge should be stricken, but he cites no authority that would allow this Court to strike his testimony from the record. Ali‘s pattern of lies has forced him to take a position that lacks any legal support. In essence, Ali now assеrts that he lied to the immigration judge when he testified that he had lied on the application. But the problem with that assertion is that Ali‘s earlier concessions about the misrepresentation on his application support the decision of the Board.
Chea‘s strategic decision to concede Ali‘s removability was reasonable. Although Ali was removable for his earlier misrеpresentation, he was still eligible for discretionary waiver of removability under section 237(a)(1)(H) of the Immigration Act,
Ali argues that Chea‘s decision not to contest Ali‘s removability was not a strategic decision, but substantial evidence supports the contrary finding by the Board. Ali contends that the letter from Chea proves that Chea thought that the remand from the Board did not permit Ali to challenge removability under section 237(a)(1)(A) of the Act. Chea stated in his letter that Ali was able to challenge removability on remand to the immigration judge, but “this only deals with the aggravated felony charge[] beсause the pardon vitiates this charge. However, it is clear that the pardon does not defeat the fraud charge because the fact is that the arrest, plea[,] and probation were not disclosed on [Ali‘s application].” Chea‘s letter also explained that “[t]he charge of removability [for] fraud or willful misrepresentation of fact was decided many yеars ago” because Ali‘s former attorney “admitted the allegations on behalf of Mr. Ali” and sought protection from removal under the Convention. The Board reasonably construed Chea‘s letter to explain that any challenge to the earlier concession of misrepresentation would have been futile. See Adefemi, 386 F.3d at 1029.
Even if we were to accept Ali‘s argument that Chеa rendered deficient performance when he conceded that Ali was removable, Ali would not be able to prove prejudice. There is no “reasonable probability that but for the attorney‘s error, the outcome of the proceedings would have been different.” Dakane, 399 F.3d at 1274. In the light of this record, any effort by Ali to contest that he was removable for willful misrepresentation would have failed.
IV. CONCLUSION
Ali‘s petition for review is DENIED.