Opinion
No. C 01-4680 MMC
March 13, 2002
ORDER DENYING PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS AND REQUEST FOR STAY OF REMOVAL; VACATING HEARING
Before the Court is petitioner Fatolah Afrasiabi's Application for a Writ of Habeas Corpus and Corresponding Request for a Stay of Removal. Respondents have filed a return and opposition to the application. Petitioner has filed a traverse. Having reviewed the papers submitted in support of and in response to the application, the Court deems the matter appropriate for decision on those submissions, VACATES the hearing scheduled for March 15, 2002, and rules as follows.
BACKGROUND
On May 5, 1994, the Immigration and Naturalization Service ("INS") issued to petitioner, a native and citizen of Iran, an order to show cause why he should not be deported from the United States. (See Appl. for Writ of Habeas Corpus Ex. A.) On August 21, 2000, after petitioner failed to appear for a hearing scheduled for that date, United States Immigration Judge Brian H. Simpson of the Immigration Court, San Francisco, California, conducted an "in absentia" hearing, found that the INS had established that petitioner was deportable, and ordered that petitioner be deported. (See Fernandez Decl. C.)
On September 6, 2000, petitioner, appearing pro se, filed a motion entitled "Emergency Motion to Vacate/Re-Open the Order of August 21, 2000, and For Change of Venue." (See Appl. for Writ of Habeas Corpus Ex. G.) Petitioner argued therein that (1) he had not received notice of the August 21, 2000 hearing; (2) he had earlier requested a change in venue and "was under the impression that his request for change of venue would be granted;" and (3) that it was "highly unfair to him and his family that he [was] denied a full hearing." (See id.) On October 11, 2000, Immigration Judge Simpson denied petitioner's motion after concluding that petitioner had failed to demonstrate any ground to warrant rescission of the in absentia order of deportation. (See id., Ex. H.) Specifically, Immigration Judge Simpson found that petitioner had been personally served with notice of the August 21, 2000 hearing, and had not filed a motion for change of venue, even though petitioner had previously been advised that if he did not file such a motion or if such a motion was not granted, petitioner would have to appear in San Francisco for the August 21, 2000 hearing. (See id.)
Petitioner, appearing through counsel, filed with the Bureau of Immigration Appeals ("BIA") an appeal from Judge Simpson's order denying petitioner's motion to reopen the proceedings. (See Id. Ex. I.) In support of his appeal, petitioner submitted evidence that had not been submitted to the Immigration Judge, specifically petitioner's declaration "explaining the facts behind [his] failure to appear." (See id. Ex. I at Ex. A [Afrasiabi Decl. at ¶ 1].) In that declaration, petitioner stated that he did not attend the August 21, 2000, hearing because (1) his wife has a "mental condition" and was "irrational" and "utterly out of control" on the date that petitioner had planned to travel to San Francisco for the August 21, 2000 hearing; and (2) petitioners brother, who was not an attorney, had "advised" petitioner that "it was okay to miss the court date." (See id., Ex. I at Ex. A (Afrasiabi Decl. at ¶¶ 1, 4, 6, 9, 10].)
On August 23, 2001, the BIA dismissed petitioner's appeal. (See id. Ex. K.) In doing so, the BIA first affirmed the decision of the Immigration Judge after finding that petitioner "was aware of his obligation to appear for the hearing, and had never been instructed by the Immigration Judge that his appearance was unnecessary," and that the record did not include a motion for change of venue. (See id.) Second, with respect to petitioner's new evidence that he had relied on his brothers erroneous advice, the BIA held that "[w]e will not reopen these proceedings based upon an ineffective assistance of counsel theory" because petitioner had acknowledged that he was aware his brother was not a lawyer. (See id.) Finally, with respect to petitioners new evidence that his wife had been ill, the BIA, citing the principle that "[t]he Board will not accept evidence first submitted on appeal," held that "[t]his contention should have been initially raised in the [petitioner's] motion to reopen filed with the Immigration Judge, and not with the Board." (See id.)
DISCUSSION
An alien subject to an order of deportation may challenge his detention under 28 U.S.C. § 2241. See Magana-Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999). Under § 2241, a petitioner is entitled to a writ of habeas corpus where "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241 (c)(3). Here, petitioner argues that he is entitled to a writ of habeas corpus because "[t]he failure of the BIA to consider the submission of new evidence on appeal deprived the Petitioner of due process of law." (See Appl. for Writ of Habeas Corpus at 18:11-13.)
At the outset, the Court notes that the BIA expressly considered petitioners newly presented evidence that his failure to appear at the August 21, 2000 hearing was the result of petitioners reliance on the erroneous advice provided by his brother. Consequently, to the extent petitioners due process deprivation claim is based on the theory that the BIA "failed to consider such evidence, petitioners argument is not well-taken. The BIA, however, did expressly decline to consider the remaining new evidence offered by petitioner.
Respondents, in their return and opposition, argue that the BIA's refusal to consider new evidence on appeal did not result in a violation of petitioner's due process rights. In support thereof, respondents cite to Ramirez-Alejandre v. Ashcroft, 276 F.3d 517 (2002), a decision issued shortly after petitioner filed the instant application. InRamirez-Alejandre, the Ninth Circuit, relying on the principle that "[a] BIA decision violates due process if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case,"see id. at 519 (internal quotations and citation omitted), held that the BIA's failure to consider evidence offered for the first time on appeal does not deprive an alien of due process. See id. at 520-21. After first noting that "there is no rule or regulation that requires the BIA to receive new evidence on appeal," the Court held that the BIA's failure to consider new evidence on appeal did not result in a fundamentally unfair proceeding because "there is a route by which a party affected by a decision made by the Board may offer new evidence," specifically a motion to reopen filed pursuant to 8 C.F.R. § 3.2 (c). See id. at 521.
Under 8 C.F.R. § 3.2 (c), "a motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted. . . . See 8 C.F.R. § 3.2 (c). A motion to reopen `shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." See id.
Petitioner argues that Ramirez-Alejandre is distinguishable because the petitioner in that case had an alternative "route" to offer new evidence but declined to avail himself of that opportunity. Petitioner suggests that the BIA, in petitioners case, could have provided him with an alternative route by construing his appeal as a motion to remand the proceedings to the Immigration Judge. Petitioner fails to demonstrate, however, how his situation differs in any material way from that of the petitioner in Ramirez-Alejandre. Nor does petitioner cite any authority requiring the BIA to construe an appeal as either a motion to reopen or a motion to remand.
In Rodriguez v. INS, 841 F.2d 865 (9th Cir. 1988), the Ninth Circuit noted that where the BIA is asked to consider new evidence after it has rendered a decision on an appeal, the proper vehicle is a "motion to reopen," whereas if the BIA is asked to consider new evidence before it has rendered a decision on the appeal, the proper vehicle is a "motion to remand." See id. at 867. A motion to reopen and a motion to remand are "for all practical purposes the same." See id.
Even if petitioner could establish that the BIA was required to construe petitioner's appeal as a motion to remand, any failure to do so was, under the circumstances presented, harmless. A motion to remand requires a showing that the new evidence "was not available and could not have been discovered or presented at the former hearing." See Ubau-Marenco v. INS, 67 F.3d 750, 758 (9th Cir. 1995), rev'd on other grounds, Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc). In this case, the relevant "former hearing" was the proceeding conducted by the Immigration Judge after receiving petitioner's motion to reopen. That motion was filed September 6, 2000. At that time, the evidence concerning petitioner's reasons for failing to attend the August 21, 2000 hearing, and, in particular, his problems dealing with his wife's mental condition, obviously was "available," indeed was in the possession of petitioner, and could have been presented. As noted, however, petitioner chose not to offer that evidence. Instead petitioner argued that he did not attend because he had not received notice of the hearing and because he believed his request for a change of venue would be granted.
In sum, petitioner has failed to show that the hearing provided by the BIA was so fundamentally unfair that he was prevented from reasonably presenting his case, and, accordingly, petitioner has failed to show a violation of his right to due process.
CONCLUSION
For the reasons expressed above, petitioner's application for a writ of habeas corpus is hereby DENIED.
Petitioner's request for a stay of deportation pending dertermination of the instant application is hereby DENIED as moot.
The Clerk shall close the file.
JUDGMENT IN A CIVIL CASE
[x] Decision by Court. This action came to trial or hearing before the court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED petitioner's application for a writ of habeas corpus is hereby DENIED.