Kay, Maung Z. v. Ashcroft, John

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-3140 & 03-2125

MAUNG ZAR KAY,

Petitioner,

v.

JOHN ASHCROFT, United States Attorney General,

Respondent.

____________

Petitions for Review of Orders of

the Board of Immigration Appeals.

No. A76 458 656

____________

ARGUED FEBRUARY 17, 2004—DECIDED OCTOBER 29, 2004

____________

Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Maung Zar Kay, a Burmese na-

tional, born February 4, 1978, fled to the United States in

October 1997.1 He was admitted into this country as a

tourist seeking asylum on October 8, 1997. The Board or-

dered Kay removable in absentia on September 9, 1998. Kay

sought to reopen the proceedings for substantive consid-

1

Kay is now married to a Burmese national and they have a

United States citizen daughter born March 8, 2003.

2 Nos. 02-3140 & 03-2125

eration of his asylum and withholding of removal petition. He

also filed a subsequent motion to reopen for consideration of

his eligibility for relief under the Convention Against Torture

(CAT). The Board denied both motions. We affirm the

Board’s decision to deny Kay’s motion to reopen to seek

asylum and withholding of removal because he did not show

that his failure to appear was due to exceptional circum-

stances. However, we reverse the Board’s decision to deny

Kay’s motion to reopen for consideration of his CAT eligi-

bility as the decision lacked a reasoned basis.

I. BACKGROUND

A. Procedural History

After his entry into the United States, Kay submitted an

application for asylum and withholding of removal on

December 6, 1997 and the matter was referred to an

Immigration Judge (IJ) in Chicago, Illinois on March 30,

1998. Kay appeared pro se for his first asylum hearing on

April 29, 1998. The hearing was rescheduled, due to the IJ’s

absence, for July 22, 1998. Prior to the rescheduled hearing

date, Kay relocated from Chicago to San Francisco, California.

On July 14, 1998, the Immigration Court received a correct

Change of Address Notice from Kay. Upon receiving the

Change of Address Notice, the court issued another notice

postponing the scheduled July 22 hearing until September

9, 1998, and stating in the notice that the hearing was to

take place in Chicago. Kay, under the mistaken belief that

changing his address with the court would change the venue

of his asylum hearing, failed to appear in Chicago on

September 9 causing the IJ to deny his petition for asylum

in absentia and order him removable.2

2

Kay did not file a Change of Venue petition, which would have

been the proper method to request a change of the location of the

(continued...)

Nos. 02-3140 & 03-2125 3

On September 24, 1998, after receiving the in absentia

order of removal, Kay retained Bruce A. Fodiman as coun-

sel. Counsel filed a timely motion to reopen proceedings on

October 9, 1998, which the IJ denied on December 31, 1998.

The IJ found that Kay received proper notice of the hearing

and that Kay’s erroneous belief that a Change of Address

Notice would change the location of his asylum did not con-

stitute exceptional circumstances sufficient to reopen the pro-

ceedings. 8 U.S.C. § 1229a(b)(5)(C). Kay appealed the IJ’s

decision to the BIA on January 21, 1999.

On November 7, 2000, during the pendency of Kay’s appeal

of the IJ’s denial of his motion to reopen, counsel filed a

separate motion with the BIA, identifying the pleading as

a “motion to remand,” as opposed to correctly labeling it a

motion to reopen, seeking protection under CAT. In support

of this motion, counsel attached a copy of one page of Kay’s

Form I-589 asylum application as well as the 1999 State

Department’s Country Report on Burma. On July 19, 2002,

the BIA denied both of Kay’s motions, upholding the IJ’s

December 31, 1998 denial of Kay’s original motion to reopen

and finding his November 7, 2000 motion for relief under

CAT untimely. As to Kay’s original motion to reopen, the

BIA agreed with the IJ that Kay had failed to demonstrate

“exceptional circumstances” because he was given fair notice

of the hearing’s time and location and his failure to appear

was not due to circumstances beyond his control. Concern-

ing Kay’s CAT motion, the Board found that in order to seek

protection under CAT, pursuant to 8 C.F.R. § 208.17(a), Kay

was required to file his CAT motion to reopen prior to June

2

(...continued)

asylum hearing, 8 C.F.R. § 1003.20(b), until November 7, 2000. As

the Board did not grant his request, venue is proper in this court

because Chicago was the location of the entry of his in absentia

removal order. 8 U.S.C. § 1252(b)(2).

4 Nos. 02-3140 & 03-2125

21, 1999, as he was under a final order of removal that

“became final” prior to March 22, 1999. 8 C.F.R. §

208.18(b)(2).

After retaining new counsel, Rhoda Wilkinson Domingo

(appellate counsel), Kay filed a third motion to reopen on

October 15, 2002, arguing that former counsel rendered in-

effective assistance by failing to file the CAT motion in a

timely manner. In support of the October 15 motion, appel-

late counsel submitted: (1) a complaint to the California

State Bar concerning former counsel; (2) a letter to former

counsel detailing Kay’s submission to the California Bar; (3)

a copy of the attorney-client agreement between Kay and

Attorney Fodiman; (4) the BIA’s July 19, 2002 decision; and

(5) a psychological assessment of Kay conducted by Eliza-

beth Schenk as well as her curriculum vitae. The psycholog-

ical assessment by Dr. Schenk diagnosed Kay with Post

Traumatic Stress Disorder (PTSD) and contained a detailed

account of Kay’s experiences in Burma. AR2 at 32-75.3 In

response to appellate counsel’s ineffective assistance allega-

tions, former counsel responded that he labeled the CAT

motion a “motion to remand” and failed to file the CAT

motion prior to June 21, 1999, because it was his under-

standing that “it was the longstanding policy of the Board

to not subject motions to remand in a pending direct appeal

of a case, such as Mr. Kay’s, to the time restrictions imposed

on motions to reopen.” AR1 at 5.4 On March 27, 2003, in a

paragraph-long per curiam unpublished order, the BIA

denied Kay’s October 15 motion stating:

We need not determine whether the respondent re-

ceived ineffective assistance of counsel, however,

3

All references to AR2 refer to the administrative record in

petitioner’s second appeal filed under No. 03-2125.

4

All references to AR1 refer to the administrative record in

petitioner’s first appeal filed under No. 02-3140.

Nos. 02-3140 & 03-2125 5

because, in our judgment, the documentation sub-

mitted by the respondent falls short of making a

prima facie showing that “it is more likely than not

that he . . . would be tortured” if he were to return

to Burma. Although the country condition material

in the record confirms some instances of brutality

by the military in Burma, it has not been prima

facie established that it is more likely than not that

respondent will be subject to such treatment.

Accordingly, the motion is denied.

(internal citations omitted). Under 8 U.S.C. § 1252(b)(1), an

applicant must petition for review in this court within 30

days of the final order of removal. The Board entered its

first order of removal on July 19, 2002, and Kay filed his

first petition for review in this court on August 19, 2002.

The Board entered its second order on March 27, 2003, and

Kay filed his second petition for review on April 25, 2003.

Therefore, both appeals were timely. On April 28, 2003, we

consolidated review of the petitioner’s two appeals of the

BIA’s July 19, 2002 order (No. 02-3140) and March 27, 2003

order (No. 03-2125).

B. Basis for Relief

Seeking asylum, withholding of removal, and protection

under CAT, Kay argues that he will be subjected to pers-

ecution and torture at the hands of the Burmese government

if returned to his native country. The Burmese government

has a long history of violating human rights, suppressing

political speech, and persecuting ethnic and religious minor-

ities. See Bureau of Democracy, Human Rights, and Labor,

United States Department of State, Burma, Country Reports

on Human Rights Practices 2002 (March 31, 2003),

http://www.state.gov/g/drl/rls/hrrpt/ 2002/18237.htm (last

viewed October 8, 2004) (2002 Burma Country Report). The

2002 Burma Country Report indicates that Burma is still

6 Nos. 02-3140 & 03-2125

ruled by a military junta which has been reported to kill,

rape, and place its citizens in forced labor camps, as well as

torture and beat political detainees suspected of espousing

pro-democratic ideologies. See id.; Lwin v. INS, 144 F.3d

505 (7th Cir. 1998) (addressing Burma’s authoritarian

military regime and its past brutality against pro-demo-

cratic student protesters).

During his childhood, Kay alleges that his father was an

active member and sergeant in the Kachin Independence

Association (KIA), a political opposition group to the Burmese

government. Though Kay was not an active member of KIA,

its members frequently visited his home. He recalls that as

a child his father was tortured and his brother killed by

government soldiers. He also claims that while attending

classes at Hlaing College in Rangoon, he became involved

in student rallies and demonstrations to raise consciousness

about the Burmese government’s human rights violations.

He states that he was arrested twice by Burmese military

officials in Rangoon. On the first occasion, December 3, 1996,

in Shwe Dagon Pagoda, he was arrested after a student

protest and detained for several hours. He was subsequently

released but went into hiding in Kun Gyan Gon. On the

second occasion, he claims he was held by Burmese military

men for two weeks and beaten severely. According to Dr.

Schenk, he still carries scars on several parts of his body

where the soldiers beat him. AR1 at 66. After this incident

his family arranged for him to flee Burma and seek asylum

in the United States.5

5

In his Form I-589 application for asylum, which also serves as

an application for CAT relief, Kay stated the following:

When I was young my father was a member of the

Kachin Independence Association. I had one brother and

two sisters. One day while my father was away from

home government soldiers came to look for him. Not

(continued...)

Nos. 02-3140 & 03-2125 7

5

(...continued)

finding my father, the soldiers took my brother outside of

the house and shot him to death.

At that time we lived at Lon Zan, a small village in the

Kachin State. Government soldiers would come to the

village and take away men and women to forced labor

camps to build new roads. One time my father was taken to

these camps and when he returned, he told us that he

was forced to work and, beaten by the soldiers and was

fed only one meal a day. After that, whenever soldiers

approached the village, my father went to hide in the

jungle.

When I was about fourteen years old, one night the sol-

diers came and burned our village. They shouted death

to the KIA supporters. Our house was nearly destroyed.

KIA troops came to our village that same day and tried

to follow the soldiers. The soldiers had disappeared into

the mountains, and could not be found.

About a week later, my father took our family to see the

KIA chief in Myitkyina. For our safety, my father re-

quested permission from the chief for all of us to move to

Rangoon. The chief agreed and told my father to keep in

contact. Our family moved to Rangoon.

If returned to my country, I fear that I will be caught by

the authorities and sent to prison and suffer the abuses

and torture by the guards. In Burma the people are not

allowed any legal representation and do not have any

human rights. Some students who were taken to prison

have died at the hands of the prison authorities. There

are several prisons around the country, and parents and

relatives are not informed as to which prison their son or

daughter is incassarated [sic]. The dead body of one

student leader who died in hospital from injuries sus-

tained at prison, was allowed to be identified by one close

relative, and only that person was allowed to accompany

the body to the cemetary [sic]. His own parents did not

(continued...)

8 Nos. 02-3140 & 03-2125

Kay attached the following evidence to his Form I-589: (1)

several newspaper articles which corroborate his account of

the atrocities committed by the Burmese military; (2) a

Hlaing College registrar form stating that Kay was a third

year student at the University from 1996 to 1997; (3) a let-

ter from the Pan Kachin Development Society in California

stating that Kay, as a member of the Kachin ethnic minority,

faces “imminent danger” if returned to Burma; and (4) a

1946 United States War Department release attesting to

the bravery of the “Kachin Rangers” in World War II and

discussing their extensive combat training. AR1 at 93-147.

Of particular note, Kay attached several articles concerning

the December 3, 1996 student protests in Rangoon. The first

article, dated December 4, 1996, from the Pacific Daily News,

entitled “Burma riot police disperse night-long student

protest,” states that over 150 heavily armed guards were re-

sponsible for breaking up a pro-democratic student protest

in the City of Rangoon. Another article, dated December 8,

1996, from the same newspaper, entitled, “Students defy

Burma military, stage pro-democratic protest,” stated that

over 487 students were detained after the December 3 pro-

5

(...continued)

get to see their own son. The Government tried to

coverup such abuses, but hospital staff leaked the news.

I am afraid such abuses could happen to me also.

I was arrested, detained and interrogated in Rangoon on

3 Dec., 96, for participating in student demonstrations

against the government I was arrested at the Shwe Dagon

Pagoda by riot police, and was taken to the old race track

where I was detained and interrogated. I was warned that

I would be in serious trouble if this happened again. I

was photographed and later released. They detained me

for about five hours. I returned home and in about a week

I had to leave the house to hide from the authorities.

AR2 at 145-149.

Nos. 02-3140 & 03-2125 9

test against government/military oppression. Kay also at-

tached three other articles which addressed the scope and

brutality of the government’s reaction to the student protests.

Id.

II. ANALYSIS

A. Motion to Reopen for Asylum or Withholding of

Removal

We first turn to Kay’s motion to reopen for consideration

of his asylum and withholding of removal eligibility. Under

the Immigration and Nationality Act (INA), an in absentia

deportation order may be rescinded if the applicant files a

motion to reopen “within 180 days after the date of the or-

der of removal if the alien demonstrates that the failure to

appear was because of exceptional circumstances (as defined

in subsection (e)(1)).” 8 U.S.C. § 1229a(b)(5)(C).6 If an appli-

cant is not alleging exceptional circumstances or a lack of

notice for his failure to appear, he must file his motion to

reopen “within 90 days of the date of entry of a final

administrative order of removal.” Id. at § 1229a(c)(6)(C)(i);

8 C.F.R. § 208.2(c)(3)(ii). Subsection (e)(1) defines “excep-

tional circumstances” as “serious illness of the alien or ser-

ious illness or death of the spouse, child, or parent of the

alien, but not including less compelling circumstances beyond

the control of the alien.” 8 U.S.C. § 1229a(e)(1) (internal

parentheses omitted).

We review the denial of a motion to reopen an order of re-

moval entered in absentia for abuse of discretion, Nazarova

v. INS, 171 F.3d 478, 482 (7th Cir. 1999); Ursachi v. INS,

296 F.3d 592, 594 (7th Cir. 2002), and may only examine

6

An applicant may file a motion to reopen any time upon a

showing that he did not receive proper notice of the hearing. 8

U.S.C. § 1229a(b)(5)(C)(ii). Kay does not argue that he did not

receive notice, thus that is not an issue on appeal.

10 Nos. 02-3140 & 03-2125

the validity of the notice afforded Kay, his stated reasons

for failing to appear, and whether removability has been

established, 8 U.S.C. § 1229a(b)(5)(D). Kay’s proffer to this

court that he suffered from PTSD, understood little English,

was pro se, and notified the court of his change of address

does not support a finding of “exceptional circumstances.”

Kay fails to explain how his PTSD prevented him from at-

tending the September 9 hearing. See Ursachi, 296 F.3d at

594 (finding that illness must be documented and give de-

tails sufficient to excuse alien’s absence). Nor does Kay argue

that he failed to receive or apprehend the notice afforded

him. See Nazarova, 171 F.3d at 483 (immigration court may

provide notice in English only). Kay’s pro se status, while

significant, is alone insufficient to excuse his absence be-

cause he does not dispute that he received notice. Finally,

Kay’s ignorance of the law, i.e., his mistaken belief that a

Change of Address Notice would serve to change the venue

of his hearing, also does not amount to an exceptional cir-

cumstance. See 8 C.F.R. § 1003.20(b) (stating an applicant

must file a motion to change venue with the Immigration

Court). The Immigration Court, upon receiving his Change

of Address Notice, delayed his hearing but clearly stated it

would be held in Chicago. Therefore, we cannot find that

the BIA abused its discretion by denying Kay’s motion to

reopen the proceedings for a determination of his asylum or

withholding of removal eligibility.

B. Timeliness of Motion to Reopen for a Determina-

tion of CAT Eligibility

While we conclude that Kay was not entitled to recision

of his in absentia order to consider his eligibility for asylum

and withholding of removal, his motion to reopen for a

Nos. 02-3140 & 03-2125 11

determination of his CAT eligibility is a separate matter.7

We find that the BIA incorrectly deemed Kay’s CAT motion

untimely and failed to provide a reasoned basis for its

denial on the merits.

As it relates to the timeliness of Kay’s November 7, 2000

motion to reopen, this case presents the question: when

does an in absentia order of removal “become final” for the

purposes of determining the deadline for an application to

reopen proceedings under CAT? According to its regula-

tions:

An alien under a final order of deportation, exclusion,

or removal that became final prior to March 22,

1999 may move to reopen proceedings for the sole

purpose of seeking protection under § 208.16(c).

Such motions shall be governed by §§ 3.23 and 3.2

of this chapter. . . . The motion to reopen shall not

be granted unless: (i) [t]he motion is filed within

[sic] June 21, 1999; and (ii) [t]he evidence sought to

be offered establishes a prima facie case that the

applicant’s removal must be withheld or deferred

under §§ 208.16(c) or 208.17(a).

8 C.F.R. § 208.18(b)(2) (emphasis added). However, “[a]n

alien who is in exclusion, deportation, or removal proceed-

ings on or after March 22, 1999 may apply for withholding

of removal under § 206.16(c), and, if applicable, may be

considered for deferral of removal under § 208.17(a).” Id. §

208.18(b)(1).

7

When Kay first applied for asylum or withholding of removal,

CAT relief was unavailable because the BIA refused to exercise

jurisdiction over CAT motions as CAT was not a self-executing

treaty and no regulations implementing the convention had been

drawn. See In re H-M-V-, 22 I. & N. Dec. 256 (BIA 1998) (declining

to exercise jurisdiction over CAT motions prior to the creation of

regulations concerning CAT implementation).

12 Nos. 02-3140 & 03-2125

Generally, an agency’s interpretation of its regulations is

entitled to due deference; however, when the agency’s in-

terpretation contravenes the plain language of the regula-

tion, congressional intent trumps. Zheng v. Ashcroft, 332

F.3d 1186, 1193-94 (9th Cir. 2003) (citing Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984)). We recognize that the IJ’s September 9, 1998 in

absentia order was a final order of removal; however, once

Kay filed a timely motion to reopen, under the plain lan-

guage of the CAT regulations, his deportation order did not

“become final” until that motion to reopen was denied by

the BIA on July 19, 2002. In its July 19, 2002 order, the

BIA summarily concluded, without analysis, that the in

absentia order of removal became final September 9, 1998,

the same day it was entered. While we acknowledge that

motions to reopen are generally disfavored and aliens who

fail to appear for hearings are to be rebuked, for the reasons

stated below, we find that Kay was not subject to the June

21, 1999 CAT filing deadline as he was in deportation pro-

ceedings after March 22, 1999.

First, in the context of an in absentia order, the only way

to “appeal” the removal order is to file a motion to reopen

the proceedings. 8 U.S.C. § 1229a(b)(5)(C). The plain lan-

guage of the CAT regulations contemplate that the appeals

process affects the timeliness determination by drawing a

distinction between the time an order is “final” and when it

“becomes final.” 8 C.F.R. § 208.18(b)(2). Further, this court

has held that a motion to reopen is “part and parcel” of the

underlying removal proceeding. Nwaokolo v. Ashcroft, 314

F.3d 303, 306 (7th Cir. 2002) (per curiam). Therefore, like

a merits determination, such as a denial of asylum relief,

we find that an in absentia order of removal becomes final

“when the Board renders its decision in a case on appeal or

certification or, where no appeal is taken, when the time

allotted for appeal has expired or the right to appeal is

waived.” In re L-V-K-, 22 I. & N. Dec. 976, 977-78 (BIA

1999) (en banc).

Nos. 02-3140 & 03-2125 13

Moreover, upon the filing of a motion to reopen after an

in absentia removal order has been entered, an applicant’s

removal is automatically stayed, 8 C.F.R. § 1003.23(b)(1)(v), in

order to allow the Board to conduct an independent review

of the order, In re Cecilia Rivera-Claros, 21 I. & N. Dec. 232

(BIA 1996) (applying reasoning to the 1994 version of the

United States Code which is not materially different from

current version). Once a deportation order is stayed, the

Immigration Court is prevented from executing an alien’s

deportation. In re M-S-, 22 I. & N. Dec. 349, 354 (BIA 1998);

cf. 8 U.S.C. § 1231(a)(1)(B) (“If the removal order is judi-

cially reviewed and if a court orders a stay of removal of the

alien,” the Board’s 90-day period to effectuate removal does

not begin to run until “the court’s final order” is entered.).

We also note that Kay could not have appealed the entry of

the September 9, 1998 in absentia order directly to this

court without first exhausting his administrative remedies

and “appealing” the IJ’s decision to the BIA through a mo-

tion to reopen. See Wijeratne v. INS, 961 F.2d 1344, 1345-46

(7th Cir. 1992) (finding that BIA’s decision denying motion

to reopen is a “final order”).

Finally, CAT relief is treated as a separate avenue for

relief. An applicant may file a second motion to reopen for

CAT relief without showing that the information presented

was previously unavailable. 8 C.F.R. § 208.18 (b)(2). Given

the Board’s distinct treatment of the review of in absentia

orders coupled with the nature of determining CAT relief,

we find that the September 9, 1998 order of removal did not

“become final” until the “appeals” process was terminated

with the BIA’s denial of Kay’s appeal of his motion to re-

open on July 19, 2002. Therefore, Kay was not required to

meet the June 21, 1999 deadline.8

8

We recognize the importance of finality in the immigration pro-

cess and the possibility that applicants may attempt to elongate

the process in order to extend their time in this country, see INS

(continued...)

14 Nos. 02-3140 & 03-2125

Even if we were to find that Kay was subject to the June

21, 1999 filing deadline, we would still be permitted to

review the Board’s substantive decision denying Kay CAT

relief. In its March 27, 2003 order, the Board considered

and denied Kay’s October 15, 2002 motion to reopen for

consideration of his CAT eligibility on the merits. The

Board could have decided the issue of Kay’s CAT entitle-

ment as an element of the ineffective assistance of counsel

determination, finding that he was not prejudiced by the

error and addressing his compliance with the requirements

of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988) (requiring

an applicant to: (1) file an affidavit explaining the agree-

ment between the applicant and former counsel and listing

what actions counsel failed to take; (2) grant former counsel

an opportunity to respond; and (3) indicate whether former

counsel’s error was reported to disciplinary authorities). How-

ever, the Board deemed the ineffective assistance of counsel

issue moot and stated that the documentation submitted by

Kay failed to establish a prima facie case for eligibility

under CAT. As the Board dismissed Kay’s motion on the

merits, we have jurisdiction to review its substantive determi-

nation. See Avelar-Cruz v. INS, 58 F.3d 338, 340 (7th Cir.

1995) (“Because the Board did not consider the argument

waived and addressed its merits, we have jurisdiction to

review the Board’s resolution of that issue.”). We now turn

to Kay’s motion for relief under CAT.

C. Eligibility Under CAT

To qualify for withholding or deferral of removal under

CAT, an applicant must prove “that it is more likely than

not that he or she would be tortured if removed to the pro-

8

(...continued)

v. Abudu, 485 U.S. 94, 107-110 (1988), however, we emphasize

that this ruling applies to a narrow group of applicants and solely

addresses the filing date for motions to reopen under CAT.

Nos. 02-3140 & 03-2125 15

posed country of removal.” 8 C.F.R. § 208.16(c)(2). Under 8

C.F.R. § 208.18(a)(1), torture is defined as:

any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a

person for such purposes as obtaining from him or

her or a third person information or a confession,

punishing him or her for an act he or she or a third

person has committed or is suspected of having com-

mitted, or intimidating or coercing him or her or a

third person, or for any reason based on discrimina-

tion of any kind, when such pain or suffering is

inflicted by or at the instigation of or with the con-

sent or acquiescence of a public official or other

person acting in an official capacity.

An IJ reviews the following factors when making this

determination: (1) evidence of past torture of the alien; (2)

whether the alien is able to relocate to another part of the

country where torture is not likely; (3) evidence of “gross,

flagrant or mass violations of human rights within the

country of removal”; and (4) other relevant information. Id.

§ 208.16(c)(3)(i)-(iv). An applicant may meet this standard

without corroborative evidence. Id. § 208.16(c)(2). Upon meet-

ing the standard, relief must be granted. Id. § 208.17(a).

Generally, the Board may deny an applicant’s motion to

reopen if he fails to comport with regulatory requirements

or fails to establish a prima facie case of eligibility for the

underlying relief sought. In re L-O-G-, 21 I. & N. Dec. 413,

414 (BIA 1996). In addition, where the underlying relief

sought is itself discretionary, the Board may deny the mo-

tion on that ground alone. Id. We review this determination

for abuse of discretion. Mansour v. INS, 230 F.3d 902, 906-

07 (7th Cir. 2000). “The BIA’s decision to deny [a] motion to

reopen will be upheld ‘unless it was made without a ra-

tional explanation, inexplicably departed from established

policies, or rested on an impermissible basis such as invid-

16 Nos. 02-3140 & 03-2125

ious discrimination against a particular race or group.’ ” Id.

at 907. A motion to reopen under CAT, however, is distinct

from an asylum claim and deserves independent substan-

tive consideration. Id.

According to the Board, when

ruling on a motion to reopen requires the exercise

of judgment regarding eligibility for the relief sought,

the Board historically has not required a conclusive

showing that, assuming the facts alleged to be true,

eligibility for relief has been established. Rather,

we have been willing to reopen where the new facts

alleged, when coupled with the facts already of

record, satisfy us that it would be worthwhile to

develop the issues further at a plenary hearing on

reopening.

In re L-O-G-, 21 I. & N. Dec. at 418-19 (internal quotation

omitted). And when an applicant “is asking that her case be

reopened so that she may apply for a form of relief which

was unavailable to her” and “has not had an opportunity to

present her application before the Immigration Judge, the

Board will look to whether the alien has proffered sufficient

evidence to indicate that there is a reasonable likelihood of

success on the merits. . . .” In re M-S-, 22 I. & N. Dec. at

356-57.

We find that the BIA’s decision to deny Kay relief under

CAT was “made without a rational explanation.” See Mansour,

230 F.3d at 906-07; see also Awe v. Ashcroft, 324 F.3d 509,

513-14 (7th Cir. 2003) (affirming in dicta reasoning of

Mansour that BIA is required to issue opinions with

rational explanations and adequate analysis of the record).

In the first instance, on July 19, 2002, Kay’s motion was

denied without review as it was deemed untimely, while in

the second instance, the terse March 27, 2003 order leaves

this court unable to review the BIA’s factual or legal

analysis.

Nos. 02-3140 & 03-2125 17

The BIA summarily states that “the country condition

material in the record confirms some instances of brutality

by the military in Burma.” This sentence (albeit an under-

statement of the human rights situation in Burma) clearly

supports Kay’s position. Directly following this statement,

however, the Board regurgitates the legal standard for

protection under CAT with no analysis or explanation and

then summarily denies Kay’s motion for relief. It is unclear

to this court what evidence the Board reviewed or even con-

sidered in coming to its conclusion. See Mansour, 230 F.3d

at 908 (vacating and remanding for further proceedings

when BIA failed to address United States State Department

Report concerning country conditions because BIA is required

to “consider the issues raised, and announce its decision in

terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted.”);

Chowdhury v. Ashcroft, 241 F.3d 848, 852 (7th Cir. 2001)

(noting that it is the duty of the Court of Appeals to “ensure

that the Board’s legal interpretations stay within the

boundaries permitted to it and that it has not unreasonably

failed to consider relevant factual information”).

Moreover, our inability to decipher whether the BIA had

a reasoned basis for its decision to deny Kay relief is further

underscored by its citation to In re Y-L-, A-G-, R-S-R-, 23

I.& N. Dec. 270 (BIA 2002) (finding no protection under CAT

for Haitian, Jamaican, and Dominican applicants convicted

of felony crimes because applicants failed to show gov-

ernmental connection to any possible torture upon removal

to native country), In re S-V-, 22 I. & N. Dec. 1306 (BIA

2000) (same rationale for Columbian applicant), and In re

J-E-, 23 I. & N. Dec. 291 (BIA 2002) (finding no “torture”

under CAT based upon potential indefinite detention of

felon deportee to Haiti), which are factually distinguishable

from the case at bar. The Board provides no explanation or

discussion concerning the applicability of these cases to the

disposition of Kay’s CAT claim. We fail to see how the first

18 Nos. 02-3140 & 03-2125

two cases, which highlight the need for government in-

volvement or inaction as an element for relief under CAT,

impact disposition of Kay’s application. After all, Kay alleged

direct government involvement. Nor is the Board’s citation

to In re J-E- enlightening, as that case bases its denial of

relief on the applicant’s lack of personal past persecution

and Kay alleged such past persecution. See Guchshenkov v.

Ashcroft, 366 F.3d 554, 558, 560 (7th Cir. 2004) (vacating

orders of removal and remanding for further proceedings

finding IJ and BIA decisions unreasoned, incomplete, and

lacking in analysis) (listing cases); Bace v. Ashcroft, 352

F.3d 1133, 1138 (7th Cir. 2003) (vacating order of removal

and remanding for further proceedings on asylum eligibility

where IJ failed to make a credibility or past persecution

determination); Azanor v. Ashcroft, 364 F.3d 1013, 1021

(9th Cir. 2004) (remanding for determination of motion to

reopen for CAT relief where Board tersely stated, with no

analysis, that applicant failed to establish prima facie case).

Most importantly, it is also difficult to see how Kay’s

allegations and supporting evidence do not establish prima

facie eligibility under CAT. First, Kay’s asylum application

alleges that he personally suffered past persecution and

may suffer future persecution at the hands of the Burmese

government due to his political activities and family affil-

iations. He alleges personal prior detention and physical

abuse at the hands of the Burmese military as well as phy-

sical abuse and even murder of his family members. Cf.

Pelinkovic v. Ashcroft, 366 F.3d 532, 542 (7th Cir. 2004)

(affirming BIA’s denial of a motion to reopen application for

protection under CAT when applicant failed to provide a

“particularized showing” that he or his family would be

individually targeted for torture). Second, Kay’s allegations of

Burma’s “gross, flagrant [and] mass violations of human

rights” are supported and corroborated by the United States

Country Reports on Human Rights Practices in Burma as

well as the numerous newspaper articles which are part of

Nos. 02-3140 & 03-2125 19

the administrative record. See Naim v. Ashcroft, 354 F.3d

652, 656 (7th Cir. 2004) (remanding to IJ for a determination

of whether there is a “clear probability” of future persecution

under withholding of removal standard when country report

supports applicant’s claims of persecution and IJ opinion is

riddled with factual errors). Finally, Kay was able to cor-

roborate his allegations concerning detention following the

student protests in December 1996 with newspaper articles

as well as providing evidence that he was a student at the

time of the protests.

III. CONCLUSION

Kay’s travels through the immigration labyrinth have

been less than smooth. In a case such as this, where the

applicant presents a strong case for relief, the underlying

relief sought is nondiscretionary, the applicant has not had

an opportunity to be heard, and the BIA issues a cursory

opinion, due process has been severely undermined.

This court has consistently recognized that aliens are

entitled to due process during deportation proceedings, which

includes a right to be heard. Capric v. Ashcroft, 355 F.3d

1075, 1087 (7th Cir. 2004). Given the handling of this case,

we question whether the proceedings thus far have satisfied

basic Fifth Amendment standards. See Chowdhury, 241

F.3d at 853 (confirming that immigration proceedings must

comport with basic due process standards); Ambati v. Reno,

233 F.3d 1054, 1061 (7th Cir. 2000) (reasoning that right to

due process is not violated when alien permitted to present

claim fully and fairly).

Further, while we recognize that Kay has no Sixth

Amendment right to effective counsel in immigration pro-

ceedings, Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001),

this court has nonetheless acknowledged the possibility that

counsel’s ineffectiveness may rise to the level of a due

20 Nos. 02-3140 & 03-2125

process violation if the alleged errors likely affected the

outcome of the proceeding, Ambati, 233 F.3d at 1061. The

Board has also recognized that ineffective assistance of

counsel may require a case to be reopened if the attorney’s

inadequate representation caused the proceedings to be “so

fundamentally unfair that the alien was prevented from

reasonably presenting his case” and that the alien was

prejudiced by the counsel’s failures. In re Lozada, 19 I. & N.

Dec. at 638.

Kay’s initial counsel’s performance was both procedurally

and substantively deficient. Procedurally, he erroneously

labeled the November 7, 2000 motion for relief under CAT

a “motion to remand” under the mistaken belief that using

the word “remand” as opposed to “reopen” would toll the

time for application. However, the title of a motion does not

dictate its characterization by the Board nor does it allow

counsel to evade procedural requirements. Krougliak v.

INS, 289 F.3d 457, 461 (7th Cir. 2002).

Substantively, his performance was also wanting. He at-

tached only one page of Kay’s asylum application to the

motion and the 1999 Burma Country Report when there was

clearly more evidence in the record to support Kay’s posi-

tion. See 8 C.F.R. § 1003.23(b)(3) (“Any motion to reopen for

the purpose of acting on an application for relief must be

accompanied by the appropriate application for relief and

all supporting documents.”) (emphsis added). Furthermore,

former counsel’s supporting brief simply states that Kay

was “arrested, detained, and interrogated in Rangoon on 3

Dec. 96” without providing any details, discussion, or sup-

porting analysis. This infirmity is especially grave given that

“[e]vidence of past torture inflicted upon the applicant” is of

paramount importance. See 8 C.F.R. § 208.16(c)(3)(i); In re

J-E-, 23 I. & N. Dec. 291, 303 (BIA 2002) (reasoning that

evidence of personal past torture is paramount even when

there is evidence of “gross, flagrant, or mass violations of

human rights in a particular country” because the focus of

Nos. 02-3140 & 03-2125 21

CAT is on whether that individual is at risk). Finally, the

brief fails to explain or point to the wealth of corroborative

evidence in the record. Appellate counsel, on the other hand,

conducted a psychological assessment of the applicant and

made specific reference to Kay’s personal abuse at the

hands of the Burmese military in her motion for CAT relief

filed on October 15, 2002. It would seem that former coun-

sel’s error had the effect of denying Kay an opportunity to

be heard, which may be an example of ineffective assistance

which rises to the level of a due process violation.

As appellate courts should not make substantive determi-

nations granting immigration relief in the first instance,

INS v. Ventura, 537 U.S. 12, 16 (2002), we remand for re-

consideration of Kay’s CAT motion. Upon remand, the

Board should consider the entire record before it as well as

allow the parties to supplement the record. See Bace, 352

F.3d at 1141-42. It may also behoove the Board to allow Kay

an opportunity to present his case in a hearing format.

Therefore, we AFFIRM the Board’s July 19, 2002 decision

insofar as it denied Kay’s motion to reopen for consideration

of his asylum and withholding of removal motions. How-

ever, we REVERSE the Board’s March 27, 2003 decision

denying Kay’s October 15, 2002 motion to reopen and remand

this case to the Board for reconsideration of Kay’s eligibility

for relief under CAT.

22 Nos. 02-3140 & 03-2125

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-29-04