Gitau v. Mukasey (8th Cir. 3/28/08)

BEAM Gruender (Bye dissenting)

The 8th cir denied this appeal from a denial of a motion to rescind, for a woman with an approved widow's petition. Petitioner said that her attorney told her not to go to the hearing, and filed a Lozada complaint. The IJ / BIA denied rehearing, because the first affidavit she signed said that she had "misunderstood" her attorney regarding the necessity to go to the hearing, whereas the second said that he told her not to go. The CtApp found that inconsistency to be sufficient to deny rescission.

Judge Bye, dissenting, gave 6 reasons (including prior disciplinary action and the approved widow's petition) to believe Petitioner rather than her former attorney.

http://www.ca8.uscourts.gov/opndir/08/03/071987P.pdf

Facts: I-130 petition, petitioner died, I-360 widow's petition filed, eventually approved. Attended several hearings telephonically.  At third hearing, she says atty told her not to appear. In first mtn to rescind, by same atty, she said that she "misunderstood" the attorney in coming to believe that she didn't need to attend. On appeal to BIA, with new counsel, she filed a Lozada complaint against atty, and asked for remand.  BIA denied the motion, finding her two affidavits to be inconsistent. She asked the BIA to reconsider, attaching a new affidavit from an atty who reviewed the tapes, seeking to undercut the atty's story; BIA denied again.

1.  Distinguished Grijalva, finding that Board's determination that atty did not actually advise her not to go was a factual difference.

   On appeal, Gitau places great emphasis on the precedential application of In re Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996). In Grijalva, the BIA held that a counsel's erroneous instruction not to appear at a hearing could constitute exceptional circumstances for missing a hearing. Id. at 473. The application of Grijalva in this case, however, is limited by the BIA's determination that here, Omwenga did not tell Gitau not to attend the hearing, as Gitau claims, but rather that Gitau just misunderstood what Omwenga was telling her. Further, in Grijalva, the petitioner's former counsel, whose employee told the petitioner not to attend the hearing, affied to that very fact, unlike the current situation before this panel. Id. at 474. We cannot find that Gitau was "blatantly misled regarding [her] need to appear at the scheduled hearing," as was the alien in Grijalva. Id.

2.  Found that BIA did make adverse credibility determination against her, but that it was reasoned and supported by substantive evidence.

   Gitau further argues that the BIA effectively made an adverse credibility finding against her, which is true. She claims this finding is not supported by specific and cogent reasons and is not anchored in the record. Gitau may be correct about the fact that the BIA did not provide many reasons why it rejected Gitau's version of the events, but it clearly held that Gitau was inconsistent in her appeal documents as to why she missed the February hearing, which satisfactorily supports the BIA's determination. Gitau reminds us that the initial affidavit stating that Gitau misunderstood Omwenga, and not that she was directed by Omwenga not to attend the hearing, was submitted while Omwenga was still Gitau's counsel, implying that Omwenga fashioned a self-serving affidavit on Gitau's behalf. This may explain some of the inconsistencies. Nonetheless, there are inconsistencies, and we cannot say that the BIA abused its discretion. Further, as the BIA pointed out, even though Weber's affidavit might support a conclusion that Gitau's attorney had many shortcomings, it does not establish that Omwenga advised Gitau to avoid the February 2006 hearing. -6- Regardless of how we interpret the evidence amassed by Gitau before the BIA, there is not enough to support a reversal in the face of the abuse of discretion standard

BYE, dissenting

1.  Noted that with an approved widow's petition, she had every incentive to appear

2.  Noted various inconsistencies in former counsel's story

- BIA didn't consider the inconsistencies in prior counsel's statements to the Bar Ass'n

- Atty's statement was inconsistent with filing the Mtn to Reopen with the IJ, which would have been unethical if what he said were true

- noted in footnote that atty had suborned a fake doctor's note

- claims of lack of notice were strange, irrelevant

- claim that he was waiting for a telephonic hearing were disproved by review of the oral record

- lack of competence (rejection for fee, poorly done affidavit) should have counted against him

- multiple bar findings against him, including for misadvising someone to skip a hearing

3.  Found that her one inconsistency was minor and explained.

   Ms. Gitau should not be faulted for this single inconsistency, as she had the right to trust her lawyer to represent her interests when preparing the affidavit for her signature. See Galvez-Vergara v. Gonzales, 484 F.3d 798, 802 n.4 (5th Cir. 2007) (indicating it is "reasonable for [an alien] to grant effective control of the case to his attorney").

4.  Found BIA decision unreasoned, would remand for re-analysis.

   In sum, without any explanation, the BIA accepted the incredible and dubious version of events set forth by Mr. Omwenga, and rejected the credible version of events set forth by Ms. Gitau without giving specific and cogent reasons for doing so. This constitutes an abuse of discretion. I would grant the petition for review and remand this matter to the BIA with instructions to reopen Ms. Gitau's removal proceedings.

Atty: Thomas Harry Tousley

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