Faisal Al Hamid v. John Ashcroft

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0232P (6th Cir.)
File Name: 03a0232p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FAISAL AL HAMID,
Petitioner-Appellant,
v.
JOHN ASHCROFT,
Respondent-Appellee.
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No. 02-3166
On Appeal from the Board of Immigration Appeals.
No. A70-824-106.
Argued: June 18, 2003
Decided and Filed: July 15, 2003
Before: BOGGS and GILMAN, Circuit Judges;
MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Abraham Kay, LAW OFFICE OF ABRAHAM
KAY, Cleveland, Ohio, for Petitioner. Susan K. Houser,
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UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Abraham
Kay, LAW OFFICE OF ABRAHAM KAY, Cleveland, Ohio,
for Petitioner. Susan K. Houser, Jeffrey J. Bernstein,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Faisal al Hamid
entered the United States on a six-month visitor’s visa in 1992
and overstayed his visa. In 1998, the United States
Immigration and Naturalization Service (INS) served him
with a Notice to Appear, alleging that he was subject to being
removed on the basis of the overstay.
Hamid was represented by two different attorneys during
the removal proceedings in the immigration court, which
lasted over two years due to numerous continuances that were
granted at his request. In 2001, the immigration court finally
ordered that Hamid be removed from the United States.
Hamid appealed the order to the Board of Immigration
Appeals (BIA). With new counsel on appeal to the BIA,
Hamid argued that his two prior counsel were ineffective,
depriving him of his due process rights. The BIA affirmed
the immigration court’s order. For the reasons set forth
below, we AFFIRM the judgment of the BIA.
I. BACKGROUND
Hamid, a Jordanian citizen, entered the United States on a
visitor’s visa from Jordan in May of 1992. His visa expired
in November of 1992. In March of 1997, Hamid, who had
not left the United States since entering in 1992, married a
United States citizen. This was Hamid’s second marriage to
a United States citizen, the first having ended in divorce

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No. 02-3166 Hamid v. Ashcroft 3
earlier in 1997. In June of 1998, the INS served Hamid with
a Notice to Appear, alleging that Hamid was subject to being
removed because he had overstayed his visa.
A removal hearing was held in the immigration court in
February of 1999. Hamid was represented at the hearing by
Elizabeth Ryser, who requested a continuance to allow for the
processing of Hamid’s second visa application, which was
pending with the INS. The court granted a continuance until
October 15, 1999.
On October 15, 1999, Ryser again sought a continuance on
the ground that the INS had yet to act on Hamid’s visa
application. The court granted a further continuance until
October 13, 2000. Hamid appeared without counsel at the
October 13, 2000 hearing because Ryser had in the interim
withdrawn from the case. At that hearing, counsel for the INS
informed the court that Hamid’s second visa application had
been denied on May 31, 2000. The court then granted Hamid
a continuance until November 17, 2000 to obtain new counsel
and allow adequate time to prepare for the hearing.
On November 17, 2000, Hamid appeared with new counsel,
Patricia Windham. Windham sought still another continuance
so that Hamid could file a new visa application. The court
denied the motion for a continuance on that ground, but it
granted a continuance until July 13, 2001 so that Windham
would have time to prepare an application for withholding of
removal.
Windham appeared with Hamid on July 13, 2001 and
advised the court that Hamid had not filed an application for
withholding of removal, but that Hamid’s brother, a United
States citizen, had filed a third visa application on Hamid’s
behalf in April of 2001. The court ruled that the application
for withholding of removal had been abandoned, but that it
would grant a continuance until August 10, 2001 for
Windham to prepare to discuss the latest visa application and
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to prepare a petition, if Hamid wished, for a voluntary
departure.
Hamid did not seek a voluntary departure at the August 10,
2001 hearing, but instead filed a motion with the court to
reconsider its ruling that the application for withholding of
removal had been abandoned. Specifically, Hamid contended
that he did not timely file an application for withholding
because he had recently converted from Islam to Christianity
and was concerned about suffering reprisals in Jordan based
on the public disclosure of his new faith. The court denied
the motion on the grounds that it was untimely and that the
circumstances did not warrant reversing the initial ruling.
Hamid argued at the same hearing that he should be granted
yet another continuance because his second wife had recently
filed what amounted to his fourth visa application, which the
INS had not yet acted upon. The court denied the motion. It
then issued an oral ruling for Hamid to be removed to Jordan.
With the assistance of a newly retained attorney, Hamid
appealed the removal order to the BIA. He argued that his
previous two attorneys had made numerous mistakes in their
representation that amounted to the ineffective assistance of
counsel. The BIA denied Hamid’s appeal. This timely
appeal followed.
II. ANALYSIS
Hamid alleges that the ineffectiveness of his two prior
counsel violated his due process rights. “Fifth Amendment
guarantees of due process extend to aliens in deportation
proceedings . . . .” Huicochea-Gomez v. INS, 237 F.3d 696,
699 (6th Cir. 2001). Ineffective assistance of counsel
violates an alien’s due process rights. Id. “The alien carries
the burden of establishing that ineffective assistance of
counsel prejudiced him or denied him fundamental fairness in
order to prove that he has suffered a denial of due process.”

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Id. We review de novo a ruling by the BIA regarding the
alleged ineffective assistance of counsel. Id.
In order to prove ineffective assistance of counsel, an alien
“must (1) submit an affidavit describing the agreement for
representation entered into with former counsel, (2) inform
former counsel of the charge for the purpose of allowing him
to respond to the complaints being made against him, and
(3) report whether a complaint has been filed with the
appropriate disciplinary authorities.” Id. (citing Matter of
Lozada, 19 I & N. Dec. 637 (BIA 1988)) (enumeration
added).
The government maintains that the BIA was correct in
holding that Hamid did not meet the Lozada requirements.
Specifically, the government argues that Hamid did not
furnish the BIA with evidence (1) of his agreements with his
attorneys, (2) of complaints that he filed with the bar
association, or (3) that his attorneys had an opportunity to
respond to the charges. Hamid, on the other hand, contends
that paragraph 20 of his affidavit that was submitted to the
BIA references complaints that he filed with the Cuyahoga
County Bar Association, which in turn gave counsel actual
notice of the charges. He further argues that the agreement
that he had with his attorneys was “set forth on the trial
transcript” and was summarized in his affidavit. Finally,
Hamid’s new counsel explained at oral argument that the
previous attorneys had had an opportunity to respond to the
charges filed with the bar association because the bar
association automatically forwards all such complaints to the
counsel referenced in the complaint.
Assuming without deciding that Hamid’s actions satisfied
the Lozada requirement that counsel have an opportunity to
respond to such complaints, Hamid has still not met the
remaining Lozada requirements. An affidavit by an alien
alleging ineffective assistance of counsel, for example,
“should include a statement that sets forth in detail the
agreement that was entered into with former counsel with
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respect to the actions to be taken . . . and what counsel did or
did not represent . . . in this regard.” Lozada, 19 I. & N. Dec.
at 639. Hamid’s affidavit and the trial transcript do not do so.
They recount Hamid’s allegations concerning what his
counsel failed to do, but do not mention what actions his
counsel promised to undertake.
Similarly, Hamid’s affidavit states that he “is causing a
copy of his BIA Appeal Brief, of this Reply Brief, of his
transcript of proceedings before the Immigration Judge, and
of attorney Windham’s August 9, 2001 Motion to Reconsider,
to be sent to the Cuyahoga County Bar Association in support
of the grievance being filed . . . against attorneys Ryser and
Windham.” But this indicates that no complaint had been
filed at the time of the execution of the affidavit. Nor did
Hamid explain in his affidavit why it had not already been
filed by that time. The fact that a grievance will be filed,
without more, does not satisfy Lozada’s requirement that a
complaint be filed before the affidavit is submitted to the
BIA, nor does it furnish an explanation of why it was not so
filed. Lozada, 19 I. & N. Dec. at 639 (stating that the
petitioner should indicate whether a complaint “has been
filed” by the time that he submits his affidavit to the BIA); cf.
Lu v. Ashcroft, 259 F.3d 127, 134 (3d Cir. 2001) (“[T]he
failure to file a complaint is not fatal if a petitioner provides
a reasonable explanation for his or her decision.”) (emphasis
omitted).
Hamid’s last argument is that even if he has not technically
complied with Lozada, the BIA should have exercised its
discretion to waive such compliance. No error is apparent,
however, where multiple visa applications were filed on
Hamid’s behalf and numerous continuances were granted by
the immigration court to allow for the proper adjudication of
this action. In any event, in the context of removal
proceedings, “[t]he failure to be granted discretionary relief
does not amount to a deprivation of a liberty interest.”
Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001).

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Sound policy reasons support compliance with the Lozada
requirements. The requirements facilitate a more thorough
evaluation by the BIA and “discourag[e] baseless
allegations.” Lozada, 19 I. & N. at 639. Hamid’s failure to
comply results in a forfeiture of his ineffective-assistance-of-
counsel claim. See, e.g., Stroe v. INS, 256 F.3d 498, 503-04
(7th Cir. 2001) (denying an alien’s petition claiming
ineffective assistance of counsel because the petitioner did not
comply with the Lozada requirements).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the BIA.

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