Rafiyev v. Mukasey, No. 07-1317/2406 (8th Cir.)(August 5, 2008)

COLLOTON, Bye, Smith

Rafiyev, a native of Azerbaijan, sought asylum, arguing past persecution against himself as well as his family on account of their Armenian ethnicity.  After the IJ and BIA rejected his asylum claim based on adverse credibility, Rafiyev petitioned the Court for review of the denial of his asylum claim and the denial of a subsequent motion to reopen based on ineffective assistance of counsel.

The Eighth Circuit declined to disturb the IJ and BIA findings of adverse credibility, which resulted from Rafiyev’s submission of fraudulent documents in support of his claim. The Court also rejected Rafiyev’s claims that the asylum confidentiality provisions at 8 C.F.R. § 208.6 were violated by the government when it sought verification on the authenticity of documents submitted by Rafiyev from the government of Azerbaijan.  Finally, the Court also left intact the lower courts’ findings that Rafiyev had filed a frivolous asylum application because Rafiyev failed to raise this before the BIA.  While the Eighth Circuit acknowledged that exhaustion of administrative remedies is not always required, it found the record too “meager” in this case to address that possibility here.

Rafiyev also asked the Court to review the denial of the motion to reopen that he filed before the BIA arguing that he had received ineffective assistance of counsel before the IJ.  The BIA, which has recognized a constitutional right to effective assistance of counsel in Matter of Lozada, denied the motion, construing it as a “due process based ineffective assistance of counsel.”  The Eighth Circuit, clarifying its decision in Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006) and discussing the law in other circuits, stated that it does not recognize an absolute constitutional right to effective counsel under the Fifth Amendment in removal proceedings, because such proceedings are civil, not criminal.

The Eighth Circuit did, however, interpret Rafiyev’s brief “generously” to raise a non-constitutional claim of ineffective assistance of counsel. The Eighth Circuit remanded to the BIA therefore, so the BIA could consider in the first instance whether it has discretionary authority to grant reopening based on ineffective assistance of counsel, i.e., whether Rafiyev has an administrative right to effective counsel notwithstanding the failure of his constitutional claim. If so, the Court noted that the BIA had not squarely addressed whether Rafiyev had indeed complied with Lozada and merited reopening.

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