7th Cir. Actually Grants an Immigration Appeal Petition

It's almost as a rare day when a federal circuit court grants review of a case from the Board of Immigration Appeals as it is when a federal circuit court grants a habeas petition. Today turned out to be Ashraf Habib's lucky day.

The government wanted Habib deported for misrepresenting the fact of his marital status in Pakistan in order to gain U.S. residency. The Seventh Circuit concluded that ineffective assistance of counsel led to Habib's current predicament and granted his petition for review.

Whoops! I Said the Loud Part Quiet and the Quiet Part Loud

Habib, a citizen of Pakistan, told USCIS that his marriage to U.S. citizen Ruby Bualice was his first and that he had no children. As it turned out, that was far from the truth. Habib may have been already married to a woman in Pakistan with whom he'd had three kids. At the very least, even if he had already divorced his Pakistani wife, he failed to disclose either her or the kids' existence on his American immigration paperwork.

At an immigrant hearing on Habib's removability, Habib's attorney "proceeded to admit and deny the numbered allegations without consulting Habib, who was present in the courtroom." That is, he contradicted himself during the proceedings -- both denying and later admitting that Habib hadn't divorced his wife. (Habib's attorney eventually obtained a copy of his divorce decree, dated two years before he married Bualice, but didn't file it because he claimed he had just received it.)

At a later hearing, Habib told his story, in which he denied being married in Pakistan when he married Bualice, but the government challenged his assertions on the ground that Habib's attorney had already admitted he was married in Pakistan. "In response, Habib's lawyer mumbled something about a 'mistake' but did not move to retract the admission of allegation 8," the Seventh Circuit noted.

What Were You Thinking?

The immigration court ultimately found Habib deportable, and said that even if his lawyer was ineffective, he wasn't prejudiced by that ineffective assistance. The Seventh Circuit disagreed, finding that the lawyer's statements during the hearing -- in which he admitted some of the allegations -- "effectively waived Habib's defense to removal, and an attorney's waiver of a complete defense to removal prejudices the client and warrants remand," the court said.

The court chastised both the BIA and the Justice Department, which both failed to realize that "the government's establishing that Habib's misrepresentation was material created only a presumption of removability." The burden then shifted to Habib to show that the marriage was valid, meaning -- contrary to the government's claim -- Habib's prior marriage was incredibly material to his claim. In fact, it was the only thing that could save him from deportation. The court also granted review based on counsel's apparent failure to timely submit a copy of his divorce decree, which, again, would probably be pretty important to his claim that he was already divorced when he married Bualice.

Related Resources:

• Material Misrepresentation under INA 212(a)(6)(C)(i) (Asian Journal)
• Ostriches Finally Vindicated as Posner Rejects Jury Instructions (FindLaw's U.S. Seventh Circuit Blog)
• Lying on an Asylum Application is a Really Bad Idea (FindLaw's U.S. Seventh Circuit Blog)
• Bad Airport Interviews No Basis for Discrediting Asylum Seeker (FindLaw's U.S. Seventh Circuit Blog)