Petition for Writ of Certiorari — Afanzi v. Holder, (2008) (No. 906)

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—" ACE OF THE CLERK

IN THE

Supreme Court of the Anited States

JOSEPH AFANWI,

Petitioner,

MICHAEL B. MUKASEY, Attorney General,

Respondent.

On Petition for a Writ of Cartiorari to the United

States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

DONALD B. AYER LAWRENCE D. ROSENBERG

SAMUEL ESTREICHER (Counsel of Record)

MEIR FEDER THOMAS J. DAVIS

NYU LAW SCHOOL JONES DAY

SUPREME COURT 51 Louisiana Ave., N.W.

LITIGATION CLINIC Washington, DC 20001

40 Washington Sq. South (202) 879-3939

New York, NY 10012

(212) 998-6226

Counsel for Petitioner

January 16, 2009 Joseph Afanwi

QUESTIONS PRESENTED

1. Whether an alien in a deportation proceeding

is denied his Fifth Amendment right to duc process

when ineffective assistance of retained counsel

prevents him from _ pursuing his statutorily

authorized appeal from an order of removal resulting

from denial of well-founded claims for asylum,

withholding of removal, and relief under the

Convention Against ‘Torture.

2. Whether the Board of Immigration Appeals

has jurisdiction to reopen proceedings for the purpose

of providing a remedy for ineffective assistance of

counsel where, following the Board’s final decision,

counsel neglected to file a petition for review in the

Court of Appeals.

PARTIES TO THE PROCEEDING

The parties to the proceeding below were Joseph

Afanwi and Michael B. Mukasey, Attorney General.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........cccc0..ccsscccssccocsccesesses i

PARTIES TO THE PROCEEDING .......................006 ii

OPINIONS AND JUDGMENTS BELOW................. 1

JURISDICTIONAL STATEMENT .......................00008 1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

I dass tetincdienatdibbdhddlaainenabadiiiuibalinenamianiadepie 2

EEE a a nn AE ee OPE er eae DREN 2

A. Eee veers aaa 3

B. a cial 4

C. The Proceedings Below ....................2..:. 6

REASONS FOR GRANTING THE WRIT............... 11

1. THE CIRCUITS ARE SHARPLY

DIVIDED OVER WHETHER

INEFFECTIVE ASSISTANCE OF

COUNSEL TO A PERSON IN A

REMOVAL PROCEEDING MAY,

UPON A SHOWING OF SUFFICIENT

PREJUDICE, CONSTITUTE A

VIOLATION OF DUE PROCESS FOR

WHICH A REMEDY IS

CONSTITUTIONALLY REQUIRED ............ 11

II. THE ISSUES PRESENTED ARE OF

GREAT AND RECURRING

III Gladidatshinsauasticensienunecsiniiniiecseneosonate 15

III.

TABLE OF CONTENTS

(continued)

PETITIONER'S RIGHT TO DUE

PROCESS WAS DENIED BY THE

DEPRIVATION OF EFFECTIVE

ASSISTANCE OF COUNSEL

Due Process Requires A Remedy

For Ineffective Assistance Of

Counsel Resulting In Prejudice To

Persons Sceking Asylum,

Withholding Of Removal, And

CAT Relief

This Court’s Ineffective

Assistance Doctrine Is

Rooted In The Due Process

EE ee

This Court’s Precedents

Prescribe A Due Process

Based Remedy For

Ineffective Assistance Of

Immigration Counsel ............

The Rationale For

Rejecting A Due Process

Right Advanced By The

Fourth Circuit And

Repeated By The Attorney

General Is Fatally Flawed ....

Page

—

TABLE OF CONTENTS

(continued)

Page

4. The Fourth Circuit’s

Additional Holding That

BIA Lacks Jurisdiction To

Provide Even A Limited

Administrative Remedy Is

INIT iicsicisincebadesentiisestsitesieaninaabisieites cae 28

B. Under Any Conceivable Standard

of Prejudice, Petitioner Was

Prejudiced By Counsel's Failure

To File A Timely Appeal ..................... 29

1. The IJ Prejudicially Erred

By Failing To Conduct An

Independent Analysis Of

Afanwi’s CAT Claim................. 30

2. The IJ’s Adverse

Credibility Finding Was

Based On Non-Existent

“Inconsistencies” In The

PIII iciinctitneinendniatemsumaccenusnnednel 33

GPO s0-sccciccrsessscnssncssssnniensisiiindieaniiln 36

TABLE OF CONTENTS

(continued)

Page

APPENDIX

Order of the United States Court of Appeals

for the Fourth Circuit (Aug. 19, 2008) ............... la

Opinion of the United States Court of Appeals

for the Fourth Circuit (May 19, 2008) ............... 3a

Order of the Board of Immigration Appeals

Denying Motion to Reopen (May 12, 2006) ..... 23a

Order of the Board of Immigration Appeals

Denying Motion to Reissue (Feb. 13, 2006) ..... 26a

Opinion of the Board of Immigration Appeals

I csmmnenes 27a

Opinion of the United States Immigration

Court (Baltimore, MD) (May 19, 2008) ........... 30a

Pertinent Statutory and Regulatory Provisions ... 72a

Statement of Beatrice Fon (Oct. 22, 2003) ............ 82a

Affidavit of Joseph Afanwi (Oct. 23, 2003) ........... 85a

Pro Se Affidavit of Joseph Afanwi

CM cvenmsuscasecsersesvewssscosee 108a

Report of Peter Basch, M.D. (March 31, 2004) ... 124a

Affidavit of Professor Emeritus Victor T.

a 127a

Excerpt, Transcript of Hearing, Immigration

IEE BR MID ccconscsccvuscsectcceeteowsccceecocs 138a

Affidavit of Fon Prescilla Neh (Feb. 27, 2005) ... 14la

vii

TABLE OF AUTHORITIES

Page

CASES

Benslimane v. Gonzales, 430 F.3d 828 (7th

ERR PR PES ERE ae ee Re ROO 23

Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir.

ITI inihets tsb laacictaaseiaaestadettlniiaiaaiiaiatiaaadiadeendiasiicesbeibidaaes 24

Blanco de Belbruno v. Ashcroft, 362 F.3d 272

RL ne 21, 25

Bridges v. Wixon, 326 U.S. 135 (1945) .............. 16, 17

Camara Vv. Ashcroft, 378 F.3d 361 (4th Cir.

IEEE ere oe ar Ie oe a 30, 31, 32

Castaneda-Suarez v. INS, 993 F.2d 142 (7th

Se a hicienesiihnsnndidenidauibitniibastinsliitieditibasiceiiniaineds 13

Chmakov v. Blackman, 266 F.3d 210 (3d Cir.

| EERIE ane ean ere wea oe ne Ree 13

Coleman v. Thompson, 501 U.S. 722 (1991)...... 26, 27

In re Compean, 24 l&N Dec. 710

Sr IIIT eiiiiteiniicieiddiaietmesntelerieieaaeiiasadaaned passim

Curumi v. Ashcroft, 119 F. App’x 468 (4th Cir.

ie detaicitanictianchedani hahaha tcl casih gece ee 32

Vill

TABLE OF AUTHORITIES

(continued)

Page

Dakane v. U.S. Attorney General, 399 F.3d

| ee 12

Dearinger ex rel. Volkova v. Reno, 232 ¥.3d

I i cetenone 12,14

Demore v. Hyung Joon Kim, 538 U.S. 510

ERAT ie eee preteen am 3, 11,17

Evitts v. Lucey, 469 U.S. 387 (1988)............ 18, 19, 20

Fadiga v. Attorney Gencral, 488 F.3d 142 (3d

I aa eanieianabidiell 12

Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th

Sau: TTI Cissdiinieennetnsninceataittededidninieeaseenicniailintineiaetaiidianiabiniel 25

Fong Haw Tan v. Phelan, 333 U.S. 6

SUI isisniticainclideintnnieaithinasniliatdieeiaieiilinnii 15, 17, 21

In re G-A-, 23 1&N Dec. 366 (BIA 2002).................. 32

poe rT 6S Uh SE I eeenenreneen 19

Georgia v. McCollum, 505 U.S. 42 (1992)................ 26

Georgis v. Ashcroft, 328 F.3d 962 (7th Cir.

SADE aI irat RAE arene ee 20, 25

Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th

a A ical iad teadtatehgiandiiaiia tepaelaiidatl labia pcetaidachalaaasls 22

TABLE OF AUTHORITIES

(continued)

Page

Huicochea-Gomez v. INS, 237 F.3d 696 (6th

AN RSE GES RSA ic 12

INS v. National Center for Immigrants’

Rights, Inc., 502 U.S. 183 (1991).........00.0000... 22

INS v. Errico, 385 U.S. 214 (1966)................ccceseeeee. 15

Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir.

RRS see Ree Se Se 14

Kamalthas v. INS, 251 F.3d 1279 (9th Cir.

STriccsabadsipacuaesedekinc eae a tehigeet initia 31

Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir.

RSS a ai aes Bets ns OE nO 30

Lozada v. INS, 857 F.2d 10 (1st Cir. 1988) ............. 12

M._L.B. v. S.L.J., 519 U.S. 102 (1996)... 19, 20

Magala v. Gonzales, 434 F.3d 523 (7th Cir.

Saar isiehaendiaaeasiachatihesaintpdahatininiiahatiehbaiinatienschaitebiiuciaba 13

Mansour v. INS, 230 F.3d 902 (7th Cir. 2000)........ 30

Martinez v. Court of Appeal, 528 U.S. 152

STEED isseithichseihlncecilasiniabaiassidetsieielsthmeictaasceaeahtaaeiiibadiaiiailiin 18

Mathews v. Eldridge, 424 U.S. 319 (1976) .. 21, 22, 25

TABLE OF AUTHORITIES

(continued)

Page

NDiom v. Gonzales, 442 F.3d 494 (6th Cir.

ITT sshd ceil eeaienieheiaaid aiednintning dai 23

Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999) ............ 29

Osei v. INS, 305 F.3d 1205 (10th Cir. 2002)............ 12

Polk County v. Dodson, 454 U.S. 312 (1981)........... 26

Rafiyev v. Mukasey, 536 F.3d 853 (8th Cir.

ST icscocsseentshceeblinasdablaanaecceiestiiaincehsaieapedeidbiaaineabaidiabdaniiuidiaiihies 13

Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006)........ 12

Sako v. Gonzales, 434 F.3d 857 (6th Cir.

EEE oe EN 12,14

Sanchez v. Keisler, 505 F.3d 641 (7th Cir.

TTI GHiistcdiaietedelaenlihecelaccetademeldaedeiaadeaiibdinasieiiaaiaaliiis 13

Strickland v. Washington, 466 U.S. 668

ASA Cee eee Oe 18, 20, 29

Taha v. Ashcroft, 389 F.3d 800 (9th Cir.

EE Se SR Hes a a ee 30, 31

United States v. Perez, 330 F.3d 97 (2d Cir.

ES TE ARs LIES Ae ke A aR Oe ee 13

TABLE OF AUTHORITIES

(continued)

Page

Wainwright v. Torna, 455 U.S. 586 (1982).............. 26

Yamataya v. Fisher, 189 U.S. 86 (1903).................. 18

Zhang v. United States, 506 F.3d 162 (2d Cir.

STIPE sibahiieiciiiadelicieiniaslsiibibcnicadagiaiRiamaplaaecaia cD acacia 22

Zhang v. U.S. Department of Jusiicc, 362 F.3d

Se es Mais icibeercetaisieateeitnehseiiienieiailinidinaliaia 24

Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 20085)........ 29

CONSTITUTIONS AND STATUTES

U.S. Constitution amendment V...................00. passim

U.S. Constitution amend:nent V1...................... 12, 18

SIE TN IIIT sind ell eieleisnetesdeiaiceinncestnincinmaipealalasiimenidiiiics 2,3

PY Te UU sisisiaiesrdinicceiniiniviianiticeinnieaiunianilidainsinaiecieaitiile 2,3

SE SRE eee a 8, 4, 23

ELE S Ne eae Ce a Ee 2,3

Ee ae oer passim

EC EOI TOE T SME TE eR 3, 23

I i 1

TABLE OF AUTHORITIES

(continued)

Page

REGULATIONS

I 31

8 SI er en eae ene ee cue 2, 28

ee Ee Oe 2,4, 29

RE a ack ae eR OSE 2,3

OTHER

Adam Liptak, Courts Criticize Judges’

Handling of Asylim Cases, N.Y. Times,

i Me ME: GED setecticiconidcciitcestanieesisnrccoosses 23

Pamela A. MacLean, Jmaugration Bench

Plagued by Flaws, Nat’\ L. J., Feb. 6,

i ERE A Stent SI ee eee a RAST 24

Lynne Marck, Posner Blasts Immigration

Courts as ‘Inadequate and II]-Trained,

Nat'l L. J. (web ed.), Apr. 22, 2008,

http://www.law.com/jsp/article.jsp?id=12

08861007986 (last visited Jan. 15, 2009)...... 16

Jaya Ramji-Nogales ect al., Refugee Roulette:

Disparities in Asylum Adjudication, 60

Stan. L. Rev. 295 (2007) .............. 17, 22, 23, 24

xiii

TABLE OF AUTHORITIES

(continued)

Page

U.S. Department of Justice, Executive Office

for Immigration Review, FY 2007

Statistical Year Book (2008), available

at http://www.usdo}j.gov/eoir/statspub/

TIENT dnnsicninsininindneinndbannienidindvenenidandinenninenin

PETITION FOR A WRIT OF CERTIORARI

Joseph Afanwi petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Fourth Circuit.

OPINIONS AND JUDGMENTS BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit (Pet. App. 3a-22a) is reported

at 526 F.3d 788 (4th Cir. 2008). The order of the

court denying Petitioner’s petition for rehearing and

rehearing en banc (Pet. App. 1a-2a) is unreported.

The Board of Immigration Appeals (“BIA”)

decision affirming the denial of Petitioner’s asylum

claim (Pet. App. 27a-29a) was issued on November

29, 2005, its order denying Petitioner’s motion to

reissue its decision (Pet. App. 26a) was issued on

February 13, 2006, and its order denying Petitioner's

motion to reopen immigration proceedings (Pet. App.

23a-25a) was issued on May 12, 2006. All three are

unreported.

The decision of Immigration Judge Jill H.

Dufresne denying Petitioner’s application for asylum,

withholding of removal, and relief under the

Convention Against Torture (“CAT”) (Pet. App. 30a-

71a) was issued on July 22, 2004, and is unreported.

JURISDICTIONAL STATEMENT

The order of the United States Court of Appeals

for the Fourth Circuit denying Petitioner's petition

for rehearing and rehearing en banc (Pet. App. la-2a)

was issued on August 19, 2008. On October 27, 2008,

the Chief Justice extended the time t» file this

petition to January 16, 2009. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

This case primarily involves the Due Process

Clause of the Fifth Amendment, which provides that

“[njo person shall ... be deprived of life, liberty, or

property, without due process of law.” U.S. Const.

amend. V.

In addition, the principal statutory provisions

involved are 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A),

1231(b)(3)(A), and 1252. The relevant regulations are

8 C.F.R. §§ 1003.1, 1003.2, and 1208.16. These

statutes and regulations are set out in the Appendix

to this petition. (Pet. App. 72a-81a.)

STATEMENT

The courts of appeals are divided 7-2 over whether

an alien has a Fifth Amendment due process right to

effective assistance of counsel, if retained, in

deportation proceedings. The Attorney General has

recently deepened the conflict by overturning twenty

years of BIA precedent and siding with the minority

view that aliens lack such a right. Nevertheless, the

Attorney General has conceded the importance both

of national uniformity on this issue and of providing

some remedy for ineffective assistance of counsel in

deportation proceedings in egregious circumstances.

Moreover, the Attorney General's acknowledgement

of the critical importance of effective assistance of

counsel contravenes his and the court below’s

erroneous and formalistic conclusion that there is no

Fifth Amendment right to effective assistance

because retained counsel is not a “state actor.” This

Court’s intervention is necessary to resolve this deep

conflict on an issue of paramount importance.

A. Background

The Immigration and Nationality Act authorizes

the Attorney General to grant an alien asylum if the

ahen cannot return to another country because of

“persecution or a well-founded fear of persecution on

account of ... political opinion.” 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A). While a grant of

asylum is discretionary, withholding of removal is

mandatory if “the alien’s life or freedom would be

threatened in that country because of the alien’s ...

political opinion.” 8 U.S.C. § 1231(b)(3)(A).

An alien may also seek relief under the CAT if the

alien can demonstrate that “more likely than not he

or she would be tortured” if returned to the country of

origin. 8 C.F.R. § 1208.16(c)(2). Like withholding of

removal, CAT relief is not discretionary, but rather

“shall be granted if the applicant’s eligibility for

withholding is_ established.” Id. § 1208.16(d)(1)

(emphasis added).

“It is well established that the Fifth Amendment

entitles aliens to due process of law in deportation

proceedings.” Demore v. Hyung Joon Kim, 538 U.S.

510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292,

306 (1993)). Further, Congress has expressly

provided that all aliens facing removal proceedings

“shall have the privilege of being represented (at no

expense to the Government) by such counsel ... as he

shall choose.” 8 U.S.C. § 1362. It has also provided

that hearings must be scheduled such “that an alien

be permitted the opportunity to secure counsel before

the first hearing date,” id. § 1229(b)(1), and that

“[t}he Attorney General shall provide for lists ... of

persons who have indicated their availability to

represent pro bono aliens [in removal proceedings],”

id. § 1229(b)(2).

Pursuant to its regulations, BIA has jurisdiction

to reopen removal proceedings to remedy ineffective

assistance, for example, by issuing a new removal

order with a “fresh” deadline for appellate review.

See In re Compean, 24 1&N Dec. 710, 740-41 (AG.

2009); 8 C.F.R. § 1003.2(a). Congress also has

provided for “[jJudicial review of a final order of

removal,” including review of constitutional claims.

8 U.S.C. § 1252(a)(1). The petition for judicial review

“must be filed not later than 30 days after the date of

the final order of removal.” /d. § 1252(b)(1).

B. Relevant Facts

Cameroon has been ruled by strongman Paul Biya

since 1982. (Pet. App. 134a.) His Francophone

regime has been criticized for its repression of

Anglophone citizens, and for ruthlessly crushing

perceived opposition. (/d. at 128a-129a.) Members of

targeted groups, such as the Southern Cameroon

National Council (SCNC), an Anglophone separatist

group, are at risk of arrest, detention and torture at

the hands of Biya’s security forces. (Jd) Prison

conditions are notoriously harsh; it is not uncommon

for detainees to die in custody. (/d. at 134a.)

Joseph Afanwi presented evidence in his removal

proceedings to show that he has been affiliated with

the SCNC since its founding, and that he began

participating in anti-government activities in 1990.

He gave detailed testimony of many incidents of

persecution, including numerous separate occasions

on which he personally was either violently beaten or

captured and tortured on account of his political

activities and affiliations. (Pet. App. at 87a-90a, 93a-

97a.) For instance, in 1990, a Francophone police

officer stopped Afanwi on his way home from church

and beat him thoroughly with a rifle butt and baton.

(/d. at 87a-88a.) Likewise, following a 1994 rally,

three police officers followed Afanwi home, beat him

severely, and warned him to stop organizing rallies.

Ud. at 93a.) Two particularly brutal incidents

occurred in the late 1990s. In 1997, Afanwi was

imprisoned for six days during which he suffered

several savage beatings; on the last day, Afanwi was

beaten unconscious and woke up in the hospital with

genital swelling so severe that he lost one of his

testicles. (Jd. at 95a-97a.) In 1999, Afanwi was again

captured for several days on account of his political

affiliations with the SCNC; he was beaten severely,

denied food and water, and deprived of sleep. (/d. at

98a-100a.)

Victor T. Le Vine, an expert on political conditions

in Cameroon, testified that Afanwi’s testimony and

detailed descriptions of detention conditions were

“eminently credible.” (Pet. App. at 127a-128a.) Two

other experts with intimate knowledge of

Cameroonian conditions agreed that Afanwi’s

testimony comported with their knowledge, and

opined that they expected that he would very likely

be tortured if returned. (See id. at 55a, 64a-65a.)

Further, three expert witnesses, including a

psychologist with expertise in diagnosing torture

victims, gave unrebutted evidence consistent with

Afanwi’s descriptions of his torture and beatings. (/d.

at 46a-53a, 63a-64a.)

Afanwi also provided documentary evidence

corroborating the specific claims and _ incidents

described in his testimony. This included, inter a/ia,

a statement from Beatrice Fon, Afanwi’s mother,

confirming that on “several occasions” Afanwi had

“suffered serious injuries while in the custody of

Cameroonian security forces” and describing “two

particularly horrendous’ beatings” Afanwi had

suffered at the hands of Camcroonian security forces.

(Id. at 82a-84a.)

Following this 1999 arrest and detention, Afanwi

went into hiding in a Presbyterian Mission. (Pet.

App. at 100a-10la.) The Cameroonian police were

looking for SCNC leaders, and in March 2002 left a

summons for Afanwi at his mother’s home. (/d. at

102a.) The Presbyterian church hiding Afanwi

sclected him to attend a conference in the United

States, giving him the opportunity to escape

Cameroon. (/d.) He arrived in Washington, DC on

July 22, 2002 as a B-2 visitor with permission to

remain in the United States until January 2003. (/d.

at 102a-103a.) Even after his escape to the United

States, Cameroonian officials continued to seek him

for arrest. U/d. at 12a, 24a.) He filed his initial

application for asylum, withholding of removal, and

CAT rehef pro se in December 2002, and filed a

revised application in January 2003 after receiving

pro bono legal representation. (See id. at 54a, 60a.)

C. The Proceedings Below

Mr. Afanwi’s petition was heard by an asylum

officer on January 23, 2003, who referred the case to

Immigration Court in Baltimore, which had

jurisdiction to adjudicate the application. See 8

C.F.R. §§ 1208.2, 1208.14; (Pet. App. 60a). A hearing

was held, and on July 22, 2004, IJ Dufresne denied

Afanwi all relicf in light of her adverse credibility

determination. (/d. at 61a-69a.) The IJ deemed the

affidavit of Afanwi’s mother, Ms. Fon, describing in

detail “two particularly horrendous beatings” that

she had “personally treated,” inconsistent with

Afanwi’s claim to have been beaten on several

occasions. (/d. at 62a-63a.) The IJ also found it

implausible that Afanwi’s mother would sustain a

beating rather than tell the police of her son’s

whereabouts, when he was “already safe in the

United States.” (/d. at 66a-67a.)

The IJ considered implausible Afanwi’s claim to

have left his hiding place in 1990 to attend church.

(Pet. App. 63a.) She also considered implausible

Afanwi’s claim to have been both beater and put to

forced labor while in custody. (/d. at 66a.) Finally,

she found it “highly implausible that Respondent

would be able to run away after being repeatedly

mistreated over the course of more than ten days.

This simply makes no sense.” (Jd) The IJ did not

articulate any further basis for finding these claims

implausible.

The IJ rejected a newspaper article Afanwi

produced describing the arrest of the phonetically-

identical “Joseph Afonui” because this is not how

Afanwi spells his name. (Pet. App. 67a.)

Discussing Afanwi’s witnesses generally, the IJ

acknowledged that “the record is replete with

affidavits submitted on Respondent’s behalf,” but

concluded that “none sufficiently corroborates his

claims of arrest and mistreatment.” (Pet. App. 64a-

65a.) She criticized the expert testimony supporting

Afanwi's general claims about country conditions on

the ground that none of them had firsthand

knowledge of his experience (/d.), and the testimony

of those who had firsthand knowledge on the ground

that in various cases they neglected to mention every

detail that Afanwi mentioned. (/d. at 65a.)

The IJ declined to accept Dr. Basch’s conclusion

that Afanwi “did suffer the torture and abuse that he

claims.” (Pet. App. 63a-64a.) Her reasoning was that

Dr. Basch’s first affidavit described “[t]he presence of

one testis in the scrotum with evidence of surgery on

the scrotum and groin” while his second noted “[t]he

presence of one testis in the scrotum with evidence of

trauma to the scrotum and groin.” (/d.) She rejected

the testimony of Dr. Shu that Afanwi had been

“involved in repeated cases of assault” because Dr.

Shu “does not speculate on how Respondent received

his injuries.” (Jd. at 64a.)

The IJ’s introductory summary of evidence

devotes considerable attention to Dr. Cogar’s

testimony as an expert psychologist specializing in

torture, and notes that this testimony corroborated

Afanwi’s testimony to a large extent, and that Dr.

Cogar found Afanwi’s testimony credible and his

minor inconsistencies themsclves consistent with his

symptoms of post-traumatic stress disorder. (Pet.

App. 46a-53a.) However, the IJ did not discuss the

merits of this testimony in her evaluation of Afanwi’s

claims. (See generally id. at 61a-69a.)

The IJ therefore denied Afanwi’s eligibility for

asylum and withholding of removal, and denicd

Afanwi’s CAT claim without any independent

analysis, but rather “for the reasons cited above in

the denial of asylum.” (Pet. App. 68a-70a.)

Afanwi filed a timely appeal and brief with BLA

through his prior pro bono counsel. (Pet. App. 5a.)

On November 29, 2005, BIA issued its decision

adopting the IJ’s adverse credibility finding and

dismissing the appeal despite “agree[ing] with the

respondent that the Immigration Judge engaged in

some unwarranted speculation.” (Jd. at 27a-29a.)

BIA mailed its order to prior counse!l at the street

address of his multi-firm office building in

Washington, DC, but without specifying the name of

counsel's law firm. (Pet. App. 5a, 10a & n.14.) Prior

counsel had moved to California in the meantime,

and had Icft instructions to forward his mail. (/d. at

5a.) This mail was not forwarded, however, and prior

counsel first received BIA’s order eight days after the

deadline to file a petition for review under 8 U.S.C. §

1252(b)(1). (éd) Therefore, although Afanwi had

relied upon his prior counsel’s agreement to file a

petition for judicial review if necessary, Afanwi was

unable timely to appeal BIA’s decision. (Jd) With

Afanwi'’s consent, prior counsel filed a motion to

rescind and reissue BIA’s decision, relying on the

incomplete address used by BIA, because it appeared

to be the best way to facilitate a timely appeal for

judicial review. (/d.) After BIA denied that motion

on February 13, 2006 (on the ground that the mailing

error was not attributable to BIA), prior counsel was

replaced by Petitioner’s current counsel. (Jd. at 5a,

26a.)

On February 27, 2006, Afanwi timely filed a

motion to reopen proceedings with BIA, introducing

new evidence that in December 2005, police

confronted and _ interrogated Afanwi’s family

members regarding his whereabouts. (Pet. App. 141a-

144a.) The motion also asserted that ineffective

assistance of counsel had prevented him from timely

filing a petition for judicial review. (Jd. at 5a-6a.)

BIA denied the motion to reopen, claiming that it

lacked jurisdiction to reopen because the claimed

error related to the filing of a petition for revicw,

which occurred after the Board’s final decision. (/d.

at 5a, 23a-25a.)

Also on February 27, 2006, nincty days after BIA’s

initial decision, Pctitioner filed in the Fourth Circuit

a petition for review of the IJ and BIA decisions.

(Pet. App. 6a.) On March 8, 2006, Afanwi filed a

second petition, captioned as a “corrected” petition for

review, to seek review of BIA’s denial of the motion to

reissuc. (/d.) On June 8, 2006, Afanwi filed a third

petition, captioned as an “amended petition for

review, to include BIA’s denial of the motion to

reopen. (/d.)

After supplemental bricfing on the effective

assistance of counscl issue, the Fourth Circuit denied

Afanwi's pctition for review. It denied review of

Afanwi’s merits claim, because the petition was not

filed within thirty days after BIA's decision, as

required by 8 U.S.C § 1252(b)(1). (Pet. App. 9a-10a.)

It also found that even if BIA had used a correct

address when mailing its decision, prior counsel still

would have missed the deadline for filing the petition

for review. (/d. at 10a.) The court next held that BIA

lacked jurisdiction to reopen the proceedings to

remedy an error which occurred at the petition-for-

review stage, thus foreclosing any administrative

remedy for the ineffective assistance. (/d. at 13a-

15a.) The court then acknowledged Afanwi’s Fifth

Amendment right to duc process in his removal

proceedings, and noted also that a number of courts

of appeals have found a Fifth Amendment violation

where counsel’s deficient performance affects the

fundamental fairness of the proceeding. (/d. at 15a-

18a.) The court declined to join those circuits,

however, holding instead that “retained counsel’s

ineffectiveness in a removal proceeding cannot

deprive an alien of his Fifth Amendment right to a

fundamentally fair hearing.” (/d. at 18a.) The court

explained that “Afanwi’s counsel was not a state

actor, nor is there a sufficient nexus between the

federal government and counsel’s ineffectiveness

such that the latter may fairly be treated as

governmental action.” (/d. at 20a.)

REASONS FOR GRANTING THE WRIT

I. THE CIRCUITS ARE SHARPLY DIVIDED

OVER WHETHER INEFFECTIVE

ASSISTANCE OF COUNSEL TO A PERSON

IN A REMOVAL PROCEEDING MAY, UPON

A SHOWING OF SUFFICIENT PREJUDICE,

CONSTITUTE A VIOLATION OF DUE

PROCESS FOR WHICH A REMEDY IS

CONSTITUTIONALLY REQUIRED

It is well-established that persons being subjected

to possible deportation are entitled to the protections

of the Due Process Clause. See Demore, 538 U.S. at

523. The precise parameters of the process that is

thus constitutionally required is somewhat less clear

and one area of sharp disagreement among the

circuits concerns the availability of a remedy for

ineffective assistance of counsel that results in denial

of a fundamentally fair proceeding.

Seven courts of appeals — the First, Second, Third,

Sixth, Ninth, Tenth and Eleventh Circuits — have

expressly recognized that constitutional due process

may be violated where the performance of retained

counsel is ineffective in the context of a removal

proceeding and prejudice is shown to result. This

conclusion is based on the rationale that while the

Sixth Amendment’s right to appointed counsel does

not apply in a civil proceeding, the Fifth Amendment

Due Process Clause is plainly applicable and may be

violated when a_ retained lawyer's ineffective

performance deprives the removal process of

fundamental fairness. Sce Lozada v. INS, 857 F.2d

10, 13 (st Cir. 1988) (“liJneffective assistance of

counsel in a deportation procceding is a denial of due

process” where the proceeding was “fundamentally

unfair”) (citation and internal quotation marks

omitted): United States v. Perez, 330 F.3d 97, 101 (2d

Cir. 2003) (same); Fadiga v. Att'y Gen., 488 F.3d 142,

155 (3d Cir. 2007) (same); Hurcochea-Gomez v. INS,

237 F.3d 696, 699 (6th Cir. 2001) (same); Hay v.

Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (same);

Osei v. INS, 305 F.3d 1205. 1208 (10th Cir. 2002)

(same); Dakane v. U.S. Att'y Gen., 399 F.3d 1269,

1273 (11th Cir. 2005) (same).

Several of these circuits have also acknowledged a

duc process right to a remedy for ineffective

assistance where counscl’s ineffectiveness occurs

during the pctition-for-revicew phase of a removal

proceeding. Dearinger ex rel. Volkova v. Reno, 232

F.3d 1042, 1045 (9th Cir. 2000) (“where an alien is

prevented from filing an appeal in an immigration

proceeding due to counscel’s error, the error deprives

the alien of the appellate proceeding entirely” and

prejudice is presumed because “the adversary process

itself has been rendered presumptively unreliable”)

(citation and internal quotation marks omitted); Sako

v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (“the

fact that counsel failed to petition for judicial review

of the findings of the BIA ... result|s] in a denial of

duc process... [if the alien] would have been entitled

to continue residing in the United States”); Perez,

330 F.3d at 101 (“[djeprivation of the opportunity for

judicial review can be established by demonstrating

ineffective assistance of counsel”); Chmakov v.

Blackman, 266 F.3d 210, 216 (3d Cir. 2001)

(recognizing that “habeas might be available...if a

duc process violation frustrated...deportee’s right of

direct appeal” wherc counsel filed neither brief with

BIA nor appeal to Third Circuit, thereby rendering

the proceedings fundamentally unfair) (citation and

internal quotation marks omitted).

By contrast, two courts of appeals, first the Fourth

Circuit in the present case, and more recently the

Eighth Circuit, have categorically ruled that the Duc

Process Clausc, while applicable in the context of a

removal procceding, does not provide any remedy

where counscl’s’ ineffectiveness renders’ the

proceeding fundamentally unfair. (Pet. App. 18a);

Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008)

(holding “there is no constitutional right under the

Fifth Amendment to effective assistance of counsel in

a removal proceeding”).' And last week, the outgoing

Attorney Gencral, rclying largely on these cases.

concluded that “there is no constitutional right to

effective assistance of counsel in_ [removal]

proceedings,” /n re Compcean, 24 I&N Dec. 710, 726

! The Seventh Circuit has issued conflicting decisions on the

matter. Sve, e.g., Castaneda-Suarez v. INS, 993 F.2d 142, 144

(7th Cir. 1993) (recognizing due process right); Magala v.

Gonzales, 434 F.3d 523, 525 (7th Cur. 2005) (denying due

process right); Sanchez v. Keisler, 505 F.3d 641, 647 (7th Cir.

2007) (finding that effective assistance right in removal

proceedings is “derived ... ultimately [from] the Fifth

Amendment’s due process clause”).

(A.G. 2009), and directed BIA and IJs to apply his

decision “even in circuits that have previously held

that there is a constitutional right to effective

assistance of counsel.” /d. at 730 n.8.

The ruling of the court below went further,

however, also holding that “the BIA does not have

jurisdiction over an ineffective assistance claim

arising out of an alien’s counsel’s failure to file a

timely petition for review with the court of appeals.”

(Pet. App. 14a-15a.) This has the effect of cutting off

persons in the Fourth Circuit from even the limited

administrative right to effective assistance that BIA

has provided in some form since 1988. See Compean,

24 I&N Dec. at 731. Thus, the decision below

conflicts with the other courts of appeals to consider

the issue, and with the Attorney General's own

interpretation of BIA’s jurisdiction. See Jin Bo Zhao

v. INS, 452 F.3d 154, 157-60 & n.5 (2d Cir. 2006)

(recognizing BIA authority to reopen and reissue

decision to remedy attorney’s failure to file petition

for review); Sako, 434 F.3d at 863 (stating that where

attorney failed to petition for review, “successful

motion to reopen due to ineffective assistance of

counsel” was possible if party complied with

administrative requirements and showed prejudice);

Dearinger, 232 F.3d at 1044 n4 (“A claim of

ineffective assistance of counsel occurring after the

BIA has ruled may be raised with the BIA by filing a

motion to reopen.”); Compean, 24 I&N Dec. at 740

(“the Board has jurisdiction to consider deficient

performance claims even where they are predicated

on lawyer conduct that occurred after a final order of

removal has been entered”).

ll. THE ISSUES PRESENTED ARE OF GREAT

AND RECURRING IMPORTANCE

In FY 2007, the immigration courts heard over

270,000 removal cases, of which over 15,000 included

a defensive assertion of asylum eligibility. U.S. Dep’t

of Justice, Executive Office for Immigration Review,

FY 2007 Statistical Year Book C3, I1 (2008),

available at http://www.usdoj.gov/eoir/statspub/

fyO7syb.pdf. At the same time, BIA heard over

30,000 appeals from IJ case decisions. Jd. at T2.

Approximately 42% of cases before the immigration

courts and 75% of BIA appeals were argued by

attorneys. /d. at Al-A2. The sheer volume of such

litigation makes it a matter of the utmost importance

that this Court define the due process rights of

persons subject to removal with clarity so they are

not subject to varying interpretations from one circuit

to another—a point which the Respondent has

conceded. Compean, 24 I&N Dec. at 730 n.8

(stressing “interest of national uniformity” with

respect to such rights).

The rights at issue in deportation proceedings are

also of the utmost importance. This Court has

compared deportation to “banishment” and “exile.”

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); JNS

v. Errico, 385 U.S. 214, 225 (1966). In upholding a

alien’s due process rights in deportation proceedings,

this Court commented on the profound consequences

of deportation, observing:

Though deportation is not technically a

criminal proceeding, it visits a great

hardship on the individual and deprives

him of the right to stay and live and

work in this land of freedom. That

deportation is a penalty—at times a

most scrious one—cannot be doubted.

Meticulous care must be exercised lest

the procedure by which he is deprived of

that liberty not mect the essential

standards of fairness.

Bridges v. Wixon, 326 U.S. 135, 154 (1945). These

observations are particularly apt where, as here, the

defenses to deportation include claims for asylum,

withholding of removal, and protection under the

CAT. Deportation in such cases can be equivalent to

a sentence of imprisonment, torture, or death. The

seriousness of deportation adds to the importance of

clearly defining and uniformly applying the due

process rights of pcople facing this’ grave

consequence. Indeed, the Attorney Gencral conceded

that “the stakes in removal proccedings are

sometimes high, the immigration laws can _ be

complex, and many aliens would be better equipped

to navigate them with counsel” and that “regrettably,

the deficiencies of the immigration bar are well

known.” Compean, 24 I&N Dec. at 728 (alteration,

citation, and internal quotation marks omitted).

Adding to the importance of the issue is that as

grave as the consequences of an adverse immigration

judgment can be, the current adjudicatory system

struggles to ensure even basic fairness. Judge

Richard Posner of the Seventh Circuit recently

described the process of immigration adjudication as

“clearly inadequate,” and complained that BIA “does

not have the resources to give more than a

perfunctory review” of IJ decisions. Lynne Marek,

Posner Blasts Immigration Courts as ‘Inadequate’

and Ill-Trained, Nat’! L.J. (web ed.), Apr. 22, 2008,

http://www.law.com/jsp/article.jsp?id=120886 1007986

(last visited Jan. 16, 2009). Statistical studies reveal

systematic arbitrariness in the decisions of

immigration judges, exploding numbers of appeals to

the federal circuit courts, and serious disparities in

results for similarly situated persons. Jaya Ramji-

Nogales et al., FRefugee Roulette: Disparities in

Asylum Adjudication, 60 Stan. L. Rev. 295 (2007).

In light of these problems, this Court should

resolve the issue whether a due process remedy

exists for ineffective assistance of counsel in removal

proceedings, and the extent of BIA’s authority to

alternatively provide for such a right vis-a-vis

petitions for review, in order to ensure uniformity in

the application of this right and bring a modest

amount of order to this critical process.

Il. PETITIONER’S RIGHT TO DUE PROCESS

WAS DENIED BY THE DEPRIVATION OF

EFFECTIVE ASSISTANCE OF COUNSEL

A. Due Process Requires A Remedy For

Ineffective Assistance Of Counsel Resulting In

Prejudice To Persons Seeking Asylum,

Withholding Of Removal, And CAT Relief

“Tt is well established that the Fifth Amendment

entitles aliens to due process of law in deportation

proceedings.” Demore, 538 U.S. at 523 (quoting

Reno, 507 U.S. at 306). This is hardly surprising

given what is at stake: though technically not

criminal, it is the equivalent of “banishment” or

“exile,” Fong Haw Tan, 333 U.S. at 10, and that

“deportation is a penalty—at times a most serious

one—cannot be doubted.” Bridges, 326 U.S. at 154.

Where a person seeks to avoid deportation by asylum,

withholding of removal, or CAT relief, the fairness

and reliability of the procedures may actually

determine whether he will ultimately be tortured or

killed should he be deported. Thus, due process in

the removal context requires “all opportunity to be

heard upon the questions involving his right to be

and remain in the United States.” Yamataya v.

Fisher, 189 U.S. 86, 101 (1903).

1. This Court’s Ineffective Assistance Doctrine

Is Rooted In The Due Process Clause

The Due Process Clause’s guarantee of effective

assistance of counsel is deeply rooted in American

law and operates independent of the Sixth

Amendment’s guarantee of counsel. See Martinez v.

Court of Appeal, 528 U.S. 152, 161 (2000) (Sixth

Amendment inapplicable on appeals); Fvitts v.

Lucey, 469 U.S. 387, 396 (1985) (due process requires

effective assistance on direct criminal appeal);

Strickland v. Washington, 466 U.S. 668, 684-85

(1984) (“[t]he Constitution guarantees a fair trial

through the Due Process Clauses”). Where the

constitution requires such a right, there is “no basis

for drawing a distinction between retained and

appointed counsel that would deny cqual justice to

defendants who must choose their own lawyers.”

Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).

This is so because in cases where the state sceks

to deprive a party of liberty, the effective assistance

of an attorney “whether retained or appointed ...

plays the role necessary to ensure that the trial is

fair.” Strickland, 466 U.S. at 685. And when counsel

is prejudicially ineffective, the entire conduct of the

state’s adverse procecding is tainted, such that “st is

the State that unconstitutionally deprives the

defendant of his liberty,” even as to “defendants who

must choose their own lawyers.” Cuyler, 446 U.S. at

343, 345 (emphasis added).

Moreover, such a due process right extends to

appellate review. In F£yvitts, the Court held that while

the state need not create a process of appcllate

review, once it does so the statutory right to appeal

functions “as an integral part of the ... system for

finally adjudicating the guilt or innocence of a

defendant,” and “the procedures used in deciding

appeals must comport with the demands of the Due

Process ... Clause|] of the Constitution.” 469 U.S. at

393 (citation and internal quotation marks omitted).

As such, counsel’s failure to file a required

“statement of appeal,” denied the defendant any

opportunity for appellate review, and thus worked a

denial of due process. Jd. at 389, 396.

While those cases arose out of the deprivation of

liberty attendant to a criminal trial and direct

appeal, it has long been settled that the Due Process

Clause also guarantees the “essential fairness of the

state-ordered proceedings anterior to adverse state

action” in nominally “civil” cases which are

nonetheless “barely distinguishable from criminal

condemnation in view of the magnitude and

permanence of the loss [the affected party] faces.”

M.L.B. v. S.L.J., 519 U.S. 102, 119-20 (1996). It is

also settled that in certain serious, non-criminal

proceedings, the Fifth Amendment’s Due Process

Clause requires that individuals be entitled to

effective assistance, and thus the availability of a

remedy when it is denied. See, e.g., In re Gault, 387

U.S. 1, 30-31 (1967) (holding that an adjudication of

delinquency in non-criminal juvenile “without

effective assistance of counsel” is inconsistent with

due process) (quoting and “reiterat|ing]” holding of

Kent v. United States, 383 U.S. 541, 554 (1966));

Vitek v. Jones, 445 U.S. 480, 497 (1980) (noting that

five Justices agreed that party entitled’ to

“competent” assistance of trained professional at

involuntary commitment hearing).

This Court has recognized that the practical

consequences of an erroneous deportation can be

comparable to the consequences of a_ criminal

conviction. It follows that if an alien retains counsel,

and that counsel prejudicially taints the removal

proceedings with ineffective assistance, the

Government violates due process by relying on those

proceedings in order to deprive an alien of his liberty.

Cf Cuyler, 446 U.S. at 343; Strickland, 466 U.S. at

685; M.L.B., 519 U.S. at 120. And on that point,

there is no justification that could explain how the

Due Process Clause could forbid the Government

from depriving a person’s liberty in prejudicially

tainted, state-ordered criminal proceedings, but that

the same clause would a//ow the Government to

deprive a person’s liberty, and send him to likely

persecution or torture, in similarly tainted state-

ordered removal proceedings.

Moreover, the right to effective assistance plainly

extends to the petition-for-review stage, as judicial

review is “an integral part of the ... system for finally

adjudicating” the question of deportability. See

Evitts, 469 U.S. at 393 (citation and internal

quotation marks omitted). Judicial review of final

orders of removal provided by 8 U.S.C. § 1252(b)(2)

ensures that “petitioner’s due process rights are not

violated,” see Georgis v. Ashcroft, 328 F.3d 962, 967

(7th Cir. 2003), and assures the alien that “[i]f the

BIA’s practices result in a decision that allows a non-

harmless error to slip through, there is always the

avenue of an appeal to the courts to correct the

error.” See Blanco de Belbruno v. Ashcroft, 362 F.3d

272, 281 (4th Cir. 2004). Judicial review of removal

decisions thus serves the same_ error-correcting

function that this Court found critical in extending

the right to effective assistance of counsel to the

appellate stage in Evitts.

2. This Court’s Precedents Prescribe A Due

Process Based Remedy For Ineffective

Assistance Of Immigration Counsel

This Court’s governing test for due process

remedies set forth in Mathews v. Eldridge, 424 U.S.

319, 335 (1976)—-which examines the private interest

implicated by a government action, the risk of an

erroneous deprivation of that interest absent the

procedural safeguards in question, and_ the

Government’s interest or burden in avoiding such

safeguards—confirms that an alien should have a

remedy for prejudicial ineffective assistance of

counsel in deportation proceedings involving asylum,

withholding of removal, and CAT claims. The

importance of retained counsel to the deportation

process coupled with the risks of an erroneous

deprivation caused by prejudicial ineffective

assistance, shows that due process forbids the

Government from deporting a party through a

removal proceeding tainted by such ineffectiveness.

Private interest. First, the alien’s “private

interest that will be affected by the official action”

here, the deportation, are of the highest order. See

Eldridge, 424 U.S. at 335. It is the equivalent of

banishment or exile, Fong Haw Tan, 333 U.S. at 10,

often for a person who has resided in the United

States for an extended period and has family and

friends there. Where the alien defends on the

grounds of a well-founded fear of persecution, torture

or death, a great deal more than that may be at

stake.

Risk of deprivation. Second, the “risk of an

erroneous deprivation of such interest” without any

safeguards against ineffective assistance is high, as is

the “probable value” of the additional safeguard of an

effective assistance right, both at the hearing and

appellate level. Eldridge, 424 U.S. at 335.

Immigration law is “a notoriously complex and

constantly shifting area of law.” Zhang v. United

States, 506 F.3d 162, 169 (2d Cir. 2007); see also, e.g.,

INS v. Nat7 Ctr. for Immigrants’ Rights, Inc., 502

U.S. 183, 195 (1991) (recognizing the “complex

regime of immigration law”). As one court recently

put it, “it is difficult to imagine a layman more

lacking in skill or more in need of the guiding hand of

counsel, than an alien who often possesses the most

minimal of educations and must frequently be heard

not in the alicn’s own voice and native tongue, but

rather through an interpreter.” Hernandez-Gil v.

Gonzales, 476 F.3d 803, 807 (9th Cir. 2007). And,

indeed, a widely-reported statistical analysis of

recent asylum decisions shows that unrepresented

asylum seekers before an immigration court were

successful only 16.3% of the time, while represented

aliens as a whole had a 45.6% success rate, with

higher success rates for what the authors considered

“quality” representation (such as that provided by

Georgetown Law School’s asylum clinic and large law

firm pro bono programs). Ramji-Nogales et al.,

supra, at 340-41.

Moreover, Congress has ratified the critical role of

counsel in deportation proceedings by codifying the

due process right of aliens to retain counsel and be

represented throughout the deportation proceedings.

See 8 U.S.C. § 1362. Congress likewise requires that

the Government affirmatively provide aliens facing

deportation with notice of their mght to counsel, a

“current list” of pro bono attorneys, and time to

obtain counsel. 8 U.S.C. § 1229(a)(1)(E)(ii), (b)(1)-(2).

There can be little doubt that effective assistance of

retained counsel is of the utmost importance to the

aliens facing such proceedings, and that prejudicially

ineffective counsel creates a high risk of an erroneous

deportation.

Effective assistance of counsel at the federal

appellate review stage likewise provides a significant

safeguard against erroneous deprivations of liberty.

The problems of the immigration courts, have been

well-documented. See, e.g., Benslimane v. Gonzales,

430 F.3d 828, 830 (7th Cir. 2005) (Posner, J.) (finding

that the “adjudication of [immigration] cases at the

administrative level has fallen below the minimum

standards of legal justice”); N’Diom v. Gonzales. 442

F.3d 494, 500 (6th Cir. 2006) (Martin, J., concurring)

(noting in the immigration context the “significantly

increasing rate at which adjudication lacking reason,

logic, and effort” appears in the federal courts); Adam

Liptak, Courts Criticize Judges’ Handling of Asylum

Cases, N.Y. Times, Dec. 26, 2005, at Al; Ramji-

Nogales et al., supra, at 373 (noting “dramatic”

inconsistency among adjudication of asylum cases at

the IJ level).

Additionally, BIA’s procedural “streamlining” of

2002—including the elimination of three-judge

review panels in most instances in favor of single-

member summary affirmance without opinion—has

led to a marked decrease in the rate at which BIA

has found errors in IJ reasoning. Ramyji-Nogales et

al., supra, at 355, 377. This has led to a widespread

perception that BIA’s review procedures have become

less fair and effective, and resulted in a significant

increase in federal court review. See, e.g., id;

Berishaj v. Ashcroft, 378 F.3d 314. 331 (3d Cir. 2004)

stating that “the natural ... consequence of the

streamlining regulations is summary affirmance by

the BIA of stale, backlogged decisions by IJs. When it

does so, the BIA may have shirked its role and duty

of ensuring that the final agency determination in an

immigration case is reasonably sound”); Pamela A.

MacLean, /mmigration Bench Plagued By Flaws,

Natl L. J., Feb. 6, 2006, at 1 (“[w]hen the BIA had a

more active role, it would clean up decisions .... Now

[it] 1s a rubber stamp” (quoting former BIA Judge

Lory Rosenberg)); id. (“|t]he BIA was effectively

neutered by streamlining” (quoting Ninth Circuit

Judge Michael Daly Hawkins)).

Noting such concerns, appellate courts have held

that any such unfairness caused by BIA’s truncated

review procedures is mitigated by the federal courts’

own role in review and error-correction of IJ and BIA

decisions. See, eg, Zhang v. U.S. Dept of Justice,

362 F.3d 155, 158 (2d Cir. 2004) (“Our conclusion

that streamlining does not violate due process is ...

supported by the fact that the challenged procedures

are followed by further appellate process, namely,

judicial review”); Falcon Carriche v. Ashcroft, 350

F.3d 845, 851 (9th Cir. 2003) (same); Georgis, 328

F.3d at 967 (same); Blanco de Belbruno, 362 F.3d at

281 (same). Given that federal courts often provide

the only fora where an asylum or CAT claimant can

be assured of thorough and fair appellatc-level

review, the effective assistance of retained

immigration counsel at that level is critical.

Weak Government interest. Third, under these

circumstances, the “fiscal and administrative

burdens” of affording a remedy for prejudicial

ineffective assistance of counsel should be given little

if any weight, because it is counterbalanced by the

Government’s weighty interest in the sound

implementation of its laws. See Eldridge, 424 U.S. at

335. The sovereign decisions to create fair

procedures for asylum and withholding of removal,

and the national decision to become a signatory to the

CAT reflect judgments that, where the tests set forth

are met, an alien should not be subjected to

persecution or torture. Where the ineffective

assistance of counsel results in substantial prejudice,

including the likelihood of an incorrect decision, the

importance of correcting that error outweighs any

marginal interest in cost savings that might accrue

from deportations “earned” not on the merits, but

from attorney error.

Indeed, the Attorney General has conceded that

“[t]here is a strong public interest in ensuring that

th[e] deficiencies [of ineffective assistance of counsel]

do not affirmatively undermine the fairness and

accuracy of removal proceedings.” Compean, 24 1&N

Dec. at 728.

Accordingly, under this Court’s governing criteria,

due process requires a remedy for ineffective

assistance in the context of a deportation proceeding.

3. The Rationale For Rejecting A Due Process

Right Advanced By The Fourth Circuit And

Repeated By The Attorney General Is

Fatally Flawed

The rationale for rejecting a due process right to

effective assistance of counscl, advanced by the

Fourth Circuit, and expanded upon by Respondent’s

Compean decision, rests on several fundamentally

flawed premises.

First, both the Fourth Circuit and Respondent

primarily rely on the theory that because retained

counsel are not state actors, their errors are not

attributable to the state and as such, cannot violate

the Constitution. (Pet. App. 19a-21a); Compean, 24

I&N Dec. at 719-21. But as described supra, the

right to effective assistance derives from the due

process guarantee of fair proceedings. The state is

not allowed to “win” a deprivation of liberty based on

the prejudicial errors of counsel, and its reliance on

such tainted proceedings is the “state action” that

violates due process. See supra at Part III.A.1.

Indeed, this Court has expressly held that even

appointed counsel such as public defenders are not

“state actors,” Georgia v. McCollum, 505 U.S. 42, 53

(1992); Polk County v. Dodson, 454 U.S. 312, 318

(1981), yet the ineffectiveness of these non-state

actors nonetheless works a constitutional violation.

Second, Respondent also rests his conclusion on

Wainwright v. Torna, 455 U.S. 586 (1982) and

Coleman v. Thompson, 501 U.S. 722 (1991), which

found that attorney error could not be attributed to

the state in discrctionary appeals and collateral

habeas review, respectively. See Compean, 24 I&N

Dec. at 723. But neither case involves the

proceedings by which the state may deprive a person

of his or her liberty in the first instance, and which

therefore must be fair before such a deprivation is

allowed. Coleman itself made this distinction, noting

that the state is constitutionally responsible for

“obtaining a criminal conviction through a procedure

that fails to meet the standard of due process of law.”

501 U.S. at 754 (emphasis added; internal citation

and quotation marks omitted). An administrative

hearing, followed by a right to judicial review under 8

U.S.C. § 1252, is the established process by which an

alien’s liberty interests may be deprived, and thus

the rule of Wainwright and Coleman is inapplicable.

Third, despite admitting that “the stakes in

removal proceedings are sometimes high, the

immigration laws can be complex, and many aliens

would be better equipped to navigate them with

counsel,” and conceding that the immigration bar’s

“deficiencies ... are well known,” Respondent rejects a

due-process right to effective assistance because the

“implications” of his concessions “would arguably

require ... Government-appointed counsel [] in

removal proceedings.” Compean, 24 1&N Dec. at 725,

728 (citation and internal quotation mark omitted).

But the question of a right to appointed counsel is not

presented here, nor does it necessarily follow that a

general right to appointed counsel exists in removal

proceedings, or would be required to find a due

process remedy for ineffective assistance here.

Rather, the question here is whether, given the

statutory and regulatory policy of encouraging and

facilitating aliens in_ retaining counsel, _ the

Constitution allows the Government to deport an

alien to face likely persecution and torture when, but

for the failure of the attorney to file a petition for

review, the final order of removal would have been

vacated and reversed.

As shown below, Afanwi had a strong, substantial

case that he was persecuted and tortured, and faces

likely persecution or torture should be deported. Had

he not been deprived of an opportunity for judicial

review due to ineffective assistance of counsel, the IJ

and BIA’s fundamentally flawed denial of relief and

final order of removal would have been vacated. Due

process should forbid the Government from removing

him as a result, not of the strength of his case, but

because the attorney he retained provided ineffective

assistance.

4. The Fourth Circuit’s Additional Holding

That BIA Lacks Jurisdiction To Provide

Even A Limited Administrative Remedy Is

Baseless

‘The Fourth Circuit’ s erroneous rejection of a due

process right to effective assistance in removal

proceedings was compounded by its perfunctory, and

wholly unsupportable, conclusion that BIA also

lacked the jurisdiction to provide any remedy for

ineffective assistance associated with the filing of a

petition for review. (Pct. App. 13a-15a.)

The Fourth Circuit’s analysis rested solely on its

reading of 8 C.F.R. § 1003.1(d)(3)(ii), which as the

Attorney General correctly observes, “addresses only

the scope and standard of review by the Board” and

“does not purport to restrict the Board’s jurisdiction

or to limit the Board’s broad authority to reopen

removal proceedings.” Compean, 24 I&N Dec. at 740-

41. Instead, the regulation addressing BIA’s

jurisdiction plainly permits reopening after a final

order is entered. 8 C.F.R. § 1003.2(a) (“The Board

may at any time reopen or reconsider on its own

motion any case in which it has rendered a

decision.”). As such, Respondent correctly noted that

the Fourth Circuit erred in holding that BIA lacked

jurisdiction to provide a remedy for an attorney’s

failure to file a petition for review. Compean, 24 I&N

Dec. at 740-41.

B. Under Any Conceivable Standard of Prejudice,

Petitioner Was Prejudiced By Counsel’s

Failure To File A Timely Appeal

To be worthy of a remedy, a lawyer’s ineffective

assistance must fall below an objective standard of

reasonableness and result in prejudice, namely a

reasonable probability that, “but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at

694. There is some disagreement among the courts

that have recognized an ineffective assistance remedy

in the immigration context, about the character of the

prejudice that must be shown. See, e.g., Zheng Vv.

Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (must show

“the alien was prevented from reasonably presenting

his case”) (citation and internal quotation marks

omitted); Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.

1999) (must show “performance of counsel was so

inadequate that it may have affected the outcome of

the proceedings’).

Whatever the standard, the prejudice requirement

is satished on the present facts because Afanwi’s

appeal would have been successful for at least two

independent reasons: (1) because the IJ erroneously

failed to conduct a separate analysis of Afanwi’s CAT

claim; and (2) because the I[J’s rationale for rejecting

Afanwi's well-documented and corroborated claims of

past persecution and his fear of future persecution

were based upon so-called “inconsistencies” that are

not supported by the record and which no reasonable

adjudicator could have relied. The denial of judicial

review prevented correction of these errors.

1. The IJ Prejudicially Erred By Failing To

Conduct An Independent Analysis Of

Afanwi’s CAT Claim

Afanwi was first prejudiced by his counsel’s

ineffectiveness because, had that appeal been filed,

the Fourth Circuit would almost certainly have

vacated and remanded the administrative decision.

This is because, contrary to binding law, the IJ failed

to undertake an independent analysis of Afanwi’s

CAT claim. Such claims are distinct from claims for

asylum and withholding of removal, and cannot be

resolved simply through a reliance on an adverse

credibility finding with respect to the asylum claim.

See Lopez-Soto v. Ashcroft, 383 F.3d 228, 239 (4th

Cir. 2004); Camara v. Ashcroft, 378 F.3d 361,

371 (4th Cir. 2004) (“standard{s] for relief’ are

“different’); see also, c.g... Taha v. Ashcrott, 389 F.3d

800, 802 (9th Cir. 2004) (“an adverse credibility

finding in the asylum context does not end the

Convention inquiry”); Mansour v. INS, 230 F.3d 902,

908 (7th Cir. 2000) (“[w]e are not comfortable with

allowing a negative credibility determination in the

asylum context to wash over the torture claim”).

In determining eligibility for CAT relief, the

adjudicator must consider “all evidence relevant to

the possibility of future torture,” including

“le]vidence of gross, flagrant or mass violations of

human rights within the country of removal” and

“le]vidence of past torture inflicted upon the

applicant. 8 C.F.R. § 208.16(c)(3). “(Cjountry

conditions alone can play a decisive role in granting

relief under the Convention.” Kamalthas v. INS, 251

F.3d 1279, 1280 (9th Cir. 2001). Even if not

conclusive, “proper attention to relevant country

conditions might lend credence to [an applicant’s]

assertions of torture and cause the BIA to view them

in a different light.” Taha, 389 F.3d at 802 (citation

and internal quotation marks omitted).

Pursuant to these standards, the Fourth Circuit

has vacated and remanded at least two other

decisions by IJ Dufresne, in which she likewise made

an adverse credibility judgment yet failed to fully and

independently evaluate the petitioners’ CAT claims.

In Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.

2004), a Guinean national was denied asylum,

withholding of removal, and CAT relief. Although

the Fourth Circuit declined to reverse the IJ’s

adverse credibility determination, it vacated and

remanded on the ground that she did not apply the

separate and distinct legal analysis required for a

claim under CAT. /d. at 371-72. Rather, the IJ

simply denied, in perfunctory fashion, the CAT

claims “[flor the aforementioned reasons” rclated to

the denial of asylum and withholding of removal. Jd.

at 371. And given the strength of the testimony left

unconsidered, the Fourth Circuit explained that “the

IJ’s adverse credibility determination was

insufficient to support the legal conclusion that

Camara was ineligible for relief under the CAT.” /d.

at 372.

Five months later, the Fourth Circuit again

vacated and remanded following its consideration of a

petition seeking review of the IJ’s denial of relief

under the INA and the CAT. See Curumi v. Ashcroft.

119 F. App’x 468, 475 (4th Cir. 2005). As in Camara,

the Fourth Circuit declined to reverse the IJ’s

adverse credibility determination. but vacated and

remanded based on the IJ’s failure to apply the

separate and distinct legal analysis required for a

claim under CAT to the substantial independent

evidence that the IJ failed to consider. /d. at 473-75.

Just as in Camara and Curumi, the IJ here failed

to make the required separate determination for

withholding of removal under CAT but rather made

only a perfunctory statement that Afanwi failed to

meet his burden of proof “for the reasons cited above

in the denial of asylum.” (Pet. App. 70a.) This

cannot be squared with Camara, which emphasized

that “an adverse credibility determination cannot

alone preclude protection under the CAT.” 378 F.3d

at 372.

Compounding that error, and contrary to Camara

and Curumi, the IJ and BIA alike dismissed

substantial objective evidence of Afanwi's past

persecution, ignored State Dcpartment recports

describing ongoing oppressive conditions and flagrant

violations of human rights within Cameroon, and the

likelihood that Afanwi faces future torture if he is

returned to Cameroon. See Camara, 378 F.3d at 372;

In re G-A-, 23 1&N Dec. 366, 368 (BLA 2002).

Accordingly, but for the ineffective assistance, the

Fourth Circuit would have vacated BIA’s decision

and remanded for further review. The error was thus

prejudicial.

2. The IJ’s Adverse Credibility Finding Was

Based On Non-Existent “Inconsistencies” In

The Record

In addition to the IJ’s failure to properly analyze

Petitioner's CAT claim, Petitioner was prevented

from raising meritorious arguments that the IJ’s

adverse credibility judgment was based on supposed

“inconsistencies” in the record that were nothing of

the sort, or else resorted to naked speculation.

For instance, the IJ discredited the statement of

Petitioner’s mother because she described a “first

major beating” that occurred in April 1997, while

Afanwi had described multiple beatings prior to April

1997. (Pet. App. 62a-63a.) But her statement

actually confirmed that Afanwi had been beaten on

“several occasions.” (Jd. at 82a.) The statement then

recounted in detail “two particularly horrendous

beatings” that she “remembered ... well” because she

had treated her son’s wounds afterward. (/d.) The

“first major beating” she referred to in the statement

was unambiguously the first of the two _ she

“remembered ... well” and not the first that Afanwi

had ever suffered. (/d.) There was no inconsistency.

Likewise, the IJ found that Petitioner was not

credible because of “{[sjignificant discrepancies”

between his first, pro se affidavit and his revised

second affidavit, made with the help of counsel. (Pet.

App. 62a.) However, the second affidavit did not

contradict the first; rather, it simply contained

additional information, and described some of the

worst beatings with more specificity. (Compare id. at

85a-107a (counseled affidavit) with id. at 108a-123a

(pro se affidavit).) This is unsurprising, considering

that Petitioner completed the second, more

comprehensive affidavit with legal assistance.

The IJ also discounted otherwise undisputed

evidence with generally nonsensical speculation,

which even BIA noted was “unwarranted.” (Pet. App.

28a.) For instance, the IJ found it “highly

improbable” or “made no sensc” that Afanwi attended

church when he knew he might be in danger (:d. at

63a), that he would evangelize while at risk of

persecution, (7d.), that he would be beaten and put to

forced labor while in custody (zd. at 65a-66a), that he

could escape following his injurics (7d. at 66a), or that

his mother would suffer a beating rather than

disclose her son’s whereabouts to authorities (id. 66a-

67a), none of which are remotely outside the human

experience, let alone disputed by actual evidence in

the record.

Finally, the IJ summarily dismissed, as

“inconsistent,” two medical reports by Dr. Peter

Basch describing the loss of Petitioner’s testicle.

(Pet. App. 63a-64a.) The IJ’s reasoning was that the

first report said that there was “evidence of surgery

on the scrotum and groin,” while the second observed

“evidence of trauma to the scrotum and groin,” but

that the doctor was supposedly not offered for cross-

examination to “reconcile this tnconsistency.” (/d)

But Dr. Basch’s second report does address the so-

called “inconsistency’—namely, that “because of

language difficulties” he misunderstood Afanwi’s

reference to “medical treatments” as meaning

surgery, but that he corrected this misunderstanding

after a follow-up ecxamination and interview; it

remained the case that his observations were at all

time consistent with blunt force trauma to the groin.

(Pet. App. 124a-126a.) Moreover, the attorney for the

Department of Homeland Security conceded that Dr.

Basch was offered for cross-examination, but that

DHS chose not to respond. (Pet. App. 139a-140a.)

Apart from these “inconsistencies,” the IJ (1)

improperly disregarded corroborating medical records

from Cameroon; (2) did not address medical evidence

that Afanwi had symptems consistent with torture;

(3) disregarded an undispuiedly authentic police

summons corroborating the persecution; (4)

disregarded a newspaper article discussing Afanwi’s

persecution because it misspelled his name as the

phonetically-identical “Afonui”; (5) disregarded

affidavits of three professors with expertise on

Cameroon that corroborated Afanwi’s credibility; and

(6) otherwise disregarded other testimony

corroborating the details of Afanwi’s affidavit. (See

Pet. App. 54a-59a, 64a-65a, 67a.)

This record, taken as a whole, shows that the IJ’s

denial of relief was entirely unreasonable. Had

Afanwi been able to seek review of that denial, the

Fourth Circuit would have most likely vacated the

lJ’s flawed decision. The ineffective assistance of

counsel that prevented such review was thus

prejudicial.

CONCLUSION

The petition for certiorari should be granted.

DONALD B. AYER

SAMUEL ESTREICHER

MEIR FEDER

NYU LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

40 Washington Sq.

South

New York, NY 10012

(212) 998-6226

Respectfully submitted,

LAWRENCE D. ROSENBERG

(Counsel of Record)

THOMAS J. DAVIS

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

(202) 879-3939

Counsel for Petitioner

Joseph Afanwi

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.