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Rafiyev v. Mukasey: IMMIGRATION - credibility; fraudulent documents; asylum denial OK; no right to counsel in removal; maybe ineffective assistance

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 07-1317/2406
___________
Anar Rafiyev, *
*
Petitioner, *
* Petitions for Review of Orders
v. * of the Board of Immigration
* Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: March 13, 2008
Filed: August 5, 2008
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Anar Rafiyev petitions for review of two decisions of the Board of Immigration
Appeals. The first decision denied Rafiyevs applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT), and determined
that his application for asylum was frivolous. The second decision denied Rafiyevs
motion to reopen based on alleged ineffective assistance of counsel. We deny the
petition in No. 07-1317, but grant the petition in No. 07-2406 and remand that case
for further consideration.
-2-
I.
In July 2003, Rafiyev traveled to the United States using a visa for a
nonimmigrant exchange visitor. In December 2003, his visa status was converted
to student, on the condition that he enroll at an educational institution. When
Rafiyev never enrolled in school, the Department of Homeland Security (DHS) began
proceedings to remove him to his native country of Azerbaijan. Rafiyev conceded
that he was subject to removal for violating the conditions of his visa, but filed an
application for asylum, withholding of removal, and protection under the CAT.
Rafiyev claimed that he and his family had been subjected to persecution by the
Azerbaijan government on account of their Armenian nationality and membership in
a particular social group, and that he had a well founded fear that he would be
persecuted if he returned to Azerbaijan.
An immigration judge (IJ) denied Rafiyevs applications for relief after finding
that Rafiyev was completely, utterly not credible. The IJ found that six documents
submitted by Rafiyev were fraudulent. These documents were a birth certificate from
the U.S.S.R., a birth certificate from Azerbaijan, a death certificate for Rafiyevs
mother, a death certificate for Rafiyevs brother, a medical record, and a police report.
Relying on In re O- D-, 21 I. & N. Dec. 1079 (BIA 1998), the IJ concluded that the
counterfeit documents not only discredited Rafiyevs claims concerning identity and
nationality, but also supported a finding that his overall claim was not credible. The
IJ further found that the filing of six fraudulent documents in support of an application
for asylum qualified as the filing of a frivolous application, and that Rafiyev therefore
should be barred permanently from receiving any immigration benefit from the United
States. See 8 U.S.C. 1158(d)(6). In connection with her decision that Rafiyev did
not qualify for asylum, the IJ also found that United States government officials
complied with regulations addressing the confidentiality of asylum applications during
-3-
their overseas investigation of Rafiyevs documents. See 8 C.F.R. 208.6. As such,
the IJ implicitly rejected any contention by Rafiyev that a violation of the
confidentiality provisions provided a new and independent basis for asylum. See
Averianova v. Mukasey, 509 F.3d 890, 899 (8th Cir. 2007).
On administrative appeal, the Bureau of Immigration Appeals (BIA) concluded
that even accepting Rafiyevs arguments regarding two of the six documents cited by
the IJ (i.e., the medical record and the police report), he had not raised meritorious
challenges regarding the remaining four documents found to be fraudulent. The BIA
thus found no reason to disturb the IJs adverse credibility finding or her finding that
Rafiyev filed a frivolous application. The BIA also found no reason to set aside the
IJs conclusion that government officials did not breach the confidentiality
regulations.
Rafiyev then filed a motion to reopen the proceedings, alleging that he received
ineffective assistance of counsel during his appeal to the BIA. The BIA found that
Rafiyevs specific allegations of ineffective assistance were not supported by the
record, and therefore denied the motion to reopen.
II.
A.
In dismissing Rafiyevs administrative appeal on his asylum claim, the BIA did
not expressly adopt the decision of the IJ, and declined to accept certain portions of
it. The BIA did say, however, that Rafiyev had raised no meritorious challenge to the
IJs findings that four disputed documents were fraudulent, and that the Board found
no reason to disturb the IJs credibility findings. We read the BIA opinion, therefore,
to adopt the IJs reasoning in relevant part, and we thus consider both the BIAs
opinion and the decision of the IJ in our review. See Setiadi v. Gonzales, 437 F.3d
-4-
710, 713 (8th Cir. 2006). Administrative findings of fact, including findings on
credibility, are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary. 8 U.S.C. 1252(b)(4)(B); see Singh v. Gonzales, 495 F.3d
553, 556 (8th Cir. 2007). The BIAs discretionary decision to deny asylum is
conclusive unless manifestly contrary to the law and an abuse of discretion. 8
U.S.C. 1252(b)(4)(D).
A claim for asylum may be rejected solely on the ground that the applicants
claim is not credible. Falaja v. Gonzales, 418 F.3d 889, 894-95, 897 & n.4 (8th Cir.
2005). The BIA or an IJ may reach an adverse credibility determination based on the
applicants submission of fraudulent documents, if the petitioner fails to offer a
legitimate explanation for the suspected fraud. Onsongo v. Mukasey, 457 F.3d 849,
854 (8th Cir. 2006). In reaching that credibility finding, the agency must give
reasons that are specific enough that a reviewing court can appreciate the reasoning
behind the decision and cogent enough that a reasonable adjudicator would not be
compelled to reach the contrary conclusion. Chen v. Mukasey, 510 F.3d 797, 802
(8th Cir. 2007) (internal citation omitted).
Substantial evidence on the record as a whole supports the BIAs conclusion
that at least four documents submitted by Rafiyev were fraudulent. The DHS
presented testimony from a forensics document examiner that the U.S.S.R. birth
certificate submitted by Rafiyev was counterfeit, because it did not include a
watermark that would appear on a genuine U.S.S.R. birth certificate, and because it
was printed using a color inkjet printer rather than a continuous line offset type
printing used on the genuine articles. The DHS also presented results of an
investigation by the United States Embassy in Azerbaijan showing that Rafiyevs
Azerbaijan birth certificate and the two Azerbaijan death certificates were fraudulent.
This evidence included a finding that the language used in the certificates was not the
official language, and that the seals applied to the certificates did not match official
seals. The embassy also reported that the signature on the birth certificate did not
-5-
match an exemplar from the person who would have signed such a document in 1984,
and that the woman who purportedly signed the death certificates said the signatures
appearing on those documents were not hers. The investigation further revealed that
there were no recorded incidents in the offices registration books that match those
described on the death certificates.
Rafiyev testified in response that he relied on his father to provide documents
in support of his claim, and that he had no knowledge about any fabrication. He also
suggested that the Ministry of Internal Affairs in Azerbaijan, which produces
documents of these nature, probably gave him counterfeit records, because the
ministry was hostile to persons of Armenian descent, and sought to cause trouble for
him if he emigrated. Rafiyev alleged that the ministry had persecuted him and his
family, and he portrayed the alleged provision of flawed documents as a continuation
of this mistreatment. Even assuming nefarious activity by the Azerbaijan government
is a plausible explanation for the three fraudulent Azerbaijan documents cited by the
BIA, however, Rafiyevs theory does not compel the conclusion that the IJ and the
BIA erred by declining to accept it, because the alternative conclusion was also
reasonable. Nor does Rafiyevs suspicion about the actions of the Azerbaijan
government provide any explanation for the U.S.S.R. birth certificate that the IJ and
the BIA also found to be counterfeit. Accordingly, we conclude that the BIAs
credibility finding was supported by substantial evidence.
Rafiyev also argues that the BIA erroneously concluded that the government
complied with the federal regulation concerning confidentiality when processing his
asylum application. The regulation provides that [i]nformation contained in or
pertaining to any asylum application . . . shall not be disclosed without the written
consent of the applicant. 8 C.F.R. 208.6(a). The DHS transmitted several
documents related to Rafiyevs application to the United States Embassy in Baku,
Azerbaijan, for verification, and this disclosure was consistent with the confidentiality
regulation. Id. 208.6(c)(1). Rafiyev argues, however, that there is a distinct
-6-
possibility that confidentiality was breached during the investigation conducted by
the American embassy in Azerbaijan.
The BIA recognized that confidentiality is breached when unauthorized
disclosure of information pertaining to an asylum application is of a nature that allows
the third party to make a reasonable inference that the applicant has sought asylum,
but concluded that the regulations had not been violated in this case. The BIA
observed that Rafiyev was not identified as an asylum applicant during the
investigation, and there was no disclosure that the investigation was carried out
because of an asylum application. The IJ also found that the investigator assigned to
Rafiyevs case frequently verifies documents in connection with visa applications, and
the BIA concluded on this basis that the fact of an investigation was therefore
insufficient, in and of itself, to give rise to a reasonable inference that Rafiyev sought
asylum.
We agree with the BIAs conclusion that the embassys investigation of
Rafiyevs documents did not give rise to a reasonable inference that Rafiyev was
seeking asylum. The DHS did not reveal to the American embassy in Baku that the
investigation related to an asylum application, but told the embassy only that Rafiyev
was seeking an immigration benefit. The DHS and the Department of State also
specifically reminded the embassy with every correspondence to maintain
confidentiality in accordance with 8 C.F.R. 208.6. After the investigation, the
Department of State confirmed that the embassy in Baku complied with 8 C.F.R.
208.6, because [t]he Embassy did not indicate that an asylum application was
involved and did not identify the respondent as an asylum applicant. Rafiyev
contends that general assurances of compliance with the regulations are not
sufficient, but he bears the burden to establish eligibility for asylum, and he has not
developed evidence to undermine the BIAs conclusion that embassy officials
proceeded consistent with their representations and with the regulations.
-7-
For these reasons, we conclude that the BIAs denial of Rafiyevs application
for asylum was not manifestly contrary to law or an abuse of discretion. Because
Rafiyevs claims for withholding of removal and protection under the CAT are based
on the same underlying factual allegations, and all of the allegations relate to alleged
persecution based on statutory grounds giving rise to refugee status, the BIA did not
err in denying those claims as well. See Samedov v. Gonzales, 422 F.3d 704, 708 (8th
Cir. 2005).
B.
The IJ also found that Rafiyev submitted a frivolous application for asylum,
such that he is permanently ineligible for immigration benefits under the Immigration
and Nationality Act (INA). 8 U.S.C. 1158(d)(6). The BIAs only mention of
frivolousness was in a sentence that concluded the agencys analysis of Rafiyevs
credibility: Accordingly, we find no reason to disturb the Immigration Judges
adverse credibility finding or her finding that the respondent filed an asylum
application that was frivolous. Rafiyev now argues that the BIA erred by failing to
provide an analysis of the IJs frivolousness finding.
We reject Rafiyevs challenge to the adequacy of the BIAs reasoning, because
Rafiyev did not raise the issue of frivolousness in his administrative appeal to the
BIA. We have reviewed the brief that Rafiyev filed with the BIA, and there is no
challenge to the IJs finding on frivolousness. As the issue was not presented, the BIA
did not err by failing to address it thoroughly.
Rafiyev also challenges the manner in which the IJ made her frivolousness
finding, asserting that he was not given sufficient opportunity to account for the
specific concerns on which the IJ based her ruling, and arguing that the IJ did not find
that Rafiyev knowingly submitted fraudulent documents. See generally Kifleyesus v.
Gonzales, 462 F.3d 937, 944-45 (8th Cir. 2006); In re Y-L-, 24 I. & N. Dec. 151, 155
-8-
(BIA 2007). We decline to address these points, because Rafiyev failed to exhaust his
remedies when he did not raise the frivolousness issue before the BIA. See Etchu-
Njang v. Gonzales, 403 F.3d 577, 582 (8th Cir. 2005). Although we have noted the
possibility that exhaustion can sometimes be excused where other parties have raised
the issue, see Frango v. Gonzales, 437 F.3d 726, 729 (8th Cir. 2006), and some courts
have held that an issue is exhausted if the BIA thoroughly addresses an issue sua
sponte, Sidabutar v. Gonzales, 503 F.3d 1116, 1119-22 (10th Cir. 2007); Socop-
Gonzales v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001); contra Amaya-Artunduaga v.
United States Attorney General, 463 F.3d 1247, 1250 (11th Cir. 2006), the record in
this case is insufficient to persuade us that the policy concerns underlying the
exhaustion requirement have been satisfied. Rafiyevs brief did not challenge the
frivolousness finding or the IJs procedure in making the finding; the DHS submitted
only a one-page letter brief, which addressed the merits of the asylum claim and also
stated summarily that the IJ correctly determined that Rafiyev filed a frivolous asylum
application, (A.R. 127); the BIA stated summarily that there was no reason to disturb
the finding on frivolousness. We need not decide whether arguments by the DHS or
discussion by the BIA ever can exhaust an issue not raised by the petitioner, because
the meager record created here is insufficient to do so.
III.
Finally, Rafiyev argues that the BIA abused its discretion by denying his
motion to reopen. Rafiyev sought to reopen his case on the ground that he received
ineffective assistance of counsel before the BIA, citing Matter of Lozada, 19 I. & N.
Dec. 637, 638 (BIA 1988). Specifically, he argued that his counsel failed to address
the IJs findings that Rafiyev submitted six fraudulent documents, that he was not
credible, and that he filed a frivolous asylum application. He further alleged that
counsel should have objected to the IJs failure to rule on the merits of his asylum
claim. Rafiyev recognized that a motion to reopen is discretionary, see INS v. Abudu,
-9-
485 U.S. 94 (1988), but urged that he satisfied the criteria for relief established by
Matter of Lozada.
The BIA characterized Rafiyevs motion as a due process based ineffective
assistance of counsel claim. Citing this courts decision in Obleshchenko v. Ashcroft,
392 F.3d 970, 972 (8th Cir. 2004), the BIA reasoned that to prevail on such a claim,
the alien must show that counsels performance was so inadequate that it may well
have resulted in a deportation that would not otherwise have occurred. See also
Matter of Lozada, 19 I. & N. Dec. at 638 (Ineffective assistance of counsel in a
deportation proceeding is a denial of due process only if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case). The BIA then denied the motion. The BIA observed that counsel presented
extensive factual and legal arguments regarding the IJs adverse credibility finding
and the documents found to be fraudulent. It further ruled that although the issue of
frivolousness was not specifically argued in the administrative appeal, the IJs finding
was based on Rafiyevs submission of fraudulent documents, and the IJs reliance on
those documents was discussed at length in the administrative appeal brief. As for
the merits of the asylum claim, the BIA reasoned that the IJ rejected Rafiyevs claim
based on lack of credibility, and simply declined to make an alternative holding
premised on the assumption that Rafiyevs allegations were true. The BIA concluded
that under these circumstances, counsel had no reasonable basis for arguing the merits
of the asylum claim in an administrative appeal.
Rafiyev now argues that the BIA abused its discretion by declining to reopen
a case that met the standards set forth in Matter of Lozada, and by ignoring the fact
that he suffered prejudice due to incompetent counsel. In particular, Rafiyev notes the
BIAs acknowledgment that counsel did not specifically challenge the IJs finding of
frivolousness in the administrative appeal, and argues that he was prejudiced by
counsels failure to urge that the IJ made no finding as to whether Rafiyev knowingly
-10-
submitted fraudulent documents in the removal proceeding. See In re Y-L-, 24 I. &
N. Dec. at 155.
The government responds that an alien has no constitutional right to effective
counsel in a removal proceeding, and that the petition for review should be denied on
this basis. The government urged this position before the BIA in 2003, but the agency
concluded that an aliens right to effective counsel under the Due Process Clause was
settled law in most circuits, and that the BIA was bound by this precedent. In re
Assad, 23 I. & N. Dec. 553, 560 (BIA 2003), pet. for review dismissed, 378 F.3d 471
(5th Cir. 2004). The BIA thus continues to apply Matter of Lozada to determine
whether an alien can establish a constitutional due process violation based on
ineffective counsel. Id.
Our circuit, however, has never recognized a constitutional right to effective
counsel in a removal proceeding, and the BIA cited no such authority from this court
in In re Assad. To the contrary, in Obleshchenko v. Ashcroft, 392 F.3d 970 (8th Cir.
2004), we expressed serious doubts . . . that a fifth amendment right to counsel exists
in civil deportation proceedings, because [c]onstitutional rights are rights against
the government, and we found it difficult to see how an individual, such as [an
aliens] attorney, who is not a state actor, can deprive anyone of due process rights.
Id. at 971-72. We assumed the existence of a constitutional right in that case,
however, because other circuits had so held, e.g., Xu Yong Lu v. Ashcroft, 259 F.3d
127, 131-32 (3d Cir. 2001); Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988), and the
government did not argue to the contrary. 392 F.3d at 972. Since then, we construed
Obleshchenko as squarely rejecting an absolute constitutional right to effective
assistance of counsel with respect to asylum claims. Habchy v. Gonzales, 471 F.3d
858, 866 (8th Cir. 2006).
The Seventh Circuit has said flatly that there is no constitutional ineffectiveassistance
doctrine in removal cases, Magala v. Gonzales, 434 F.3d 523, 525 (7th
-11-
Cir. 2005), and the Fourth Circuit recently reached the same conclusion. Afanwi v.
Mukasey, 526 F.3d 788, 798 (4th Cir. 2008). While acknowledging that other circuits
have recognized a due process right to effective assistance of counsel, Afanwi
observed that these decisions grew out of Paul v. INS, 521 F.2d 194 (5th Cir. 1975),
a decision that does not squarely recognize a right to effective assistance of retained
counsel but merely suggests that such a right, if it existed, would be grounded in the
Fifth Amendment rather than the Sixth. 526 F.3d at 797 & nn. 34-35. See, e.g.,
Goonsuwan v. Ashcroft, 252 F.3d 383, 385 & n.2 (5th Cir. 2001); Magallanes-
Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986). Like Obleshchenko, the Fourth
Circuit emphasized that an aliens counsel cannot violate his clients Fifth
Amendment rights unless he can be said to be engaging in state action. Afanwi, 526
F.3d at 798 & n.40. The court then concluded that the aliens counsel was not a state
actor, nor was there a sufficient nexus between the federal government and counsels
ineffectiveness such that the latter may fairly be treated as a governmental action.
Id. at 799. See also Singh v. Gonzales, 499 F.3d 969, 980 (9th Cir. 2007) (Wallace,
J., concurring) (concluding that the Ninth Circuit has mistakenly incorporated a
criminal case constitutional right into civil cases, and thereby unnecessarily
complicated an already overburdened immigration enforcement process).
Consistent with Obleshchenko and Habchy, we hold that there is no
constitutional right under the Fifth Amendment to effective assistance of counsel in
a removal proceeding. Removal proceedings are civil; there is no constitutional right
to an attorney, so an alien cannot claim constitutionally ineffective assistance of
counsel. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Wainwright v. Torna,
455 U.S. 586, 587-88 (1982). To the extent Rafiyevs counsel was ineffective, the
federal government was not accountable for her substandard performance; it is
imputed to the client. Magala, 434 F.3d at 525. Because the constitutional claim was
destined to fail on this basis, the BIA did not abuse its discretion by refusing to reopen
Rafiyevs case on constitutional grounds.
-12-
Read generously, however, Rafiyevs brief to the BIA in support of his motion
to reopen could be understood to raise a non-constitutional claim that the BIA should
exercise discretionary authority to reopen his proceeding based on ineffective
assistance of counsel, even though such a remedy is not compelled by any statute or
the Constitution. Cf. Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001) (interpreting
Matter of Lozada, before In re Assad, to recognize an administrative right to
ineffective assistance of counsel in egregious circumstances, and assuming without
deciding that the BIA has discretionary authority to do so). The BIAs decision here
was limited to considering whether Rafiyev had established a due process based
ineffective assistance claim. In 2003, the BIA acknowledged some ambiguity in
the reasoning of Matter of Lozada, and recognized that Matter of Lozada could be
read to set forth standards under which the BIA will exercise its limited selfcertification
authority. In re Assad, 23 I. & N. Dec. at 558; see 8 C.F.R. 1003.1(c).
In re Assad, however, ultimately grounded the vitality of Matter of Lozada in binding
judicial precedent that recognized a constitutional right to effective counsel, 23 I. &
N. Dec. at 560, and the decision made no clear statement on the question whether the
BIA asserts independent administrative authority to grant relief for ineffective
assistance of counsel.
Because the BIA did not address a contention by Rafiyev that he is entitled to
relief based on the agencys discretionary authority, without regard to a constitutional
right to due process, we grant the petition for review and remand for the BIA to
address that claim in the first instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002).
If the BIA does recognize a purely administrative right to effective assistance of
counsel, we note the governments concession that the BIA has not yet determined
whether Rafiyev satisfied the requirements set forth in Matter of Lozada with respect
to counsels performance in challenging the finding of frivolousness during Rafiyevs
administrative appeal. Brief for Respondent in No. 07-2406, at 19 n.4.
* * *
-13-
For the foregoing reasons, the petition for review is denied in No. 07-1317, the
petition for review is granted in No. 07-2406, and the latter case is remanded for
further consideration.
______________________________
 

 
 
 

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