Dhillon v. Ashcroft

U.S. Court of Appeals for the Ninth Circuit

2004 U.S. App. LEXIS 10487

Petitioner Narinderjit Singh Dhillon seeks review of the Immigration Judge's denials of his motion to reopen deportation proceedings and of his claim for relief under the Convention Against Torture ("CAT"), which the Board of Immigration Appeals affirmed without opinion.  The IJ denied Dhillon's claim under CAT after finding his testimony not credible.  Although the Court of Appeals for the Ninth Circuit finds that the record fails to substantiate some of the IJ's reasons for the adverse credibility determination, it nevertheless concludes that substantial evidence does support the IJ's decision.  The Court emphasizes that Dhillon was unable to explain the discrepancy between his testimony and documents he had submitted to the former INS regarding the date of his marriage to his first wife.  According to the Court, this inconsistency "went to the heart of Dhillon's claim" because Dhillon testified that he fled India after a police raid following his wedding in 1996.  Therefore, the Court holds that the IJ did not abuse his discretion in denying Dhillon's CAT claim.

Due to his attorney's error, Dhillon did not appear at his deportation hearing and was ordered deported in absentia.  The IJ denied Dhillon's motion to reopen the proceedings because he failed to comply with the requirements established in Matter of Lozada, namely that of filing a state bar complaint against his attorney.  The Ninth Circuit holds that the IJ and BIA erred in failing to reopen proceedings on this basis.  It notes that under similar circumstances, it has dismissed the requirement of strict compliance with Lozada when the record clearly indicates counsel's ineffectiveness.  However, the Court adds that a petitioner must show that his counsel's performance prejudiced his claims in order for his request to reopen to be granted.  The Court finds that Dhillon cannot make such a showing with respect to his asylum and withholding of deportation claims because they are based upon the same testimony which the IJ properly held to be not credible.  Dhillon, however, can show that his counsel's mistake prejudiced his application for voluntary departure.  At the hearing on Dhillon's CAT claim, the IJ was inclined to grant Dhillon voluntary departure, but his deportation in absentia made him ineligible for that form of relief.  The Court remanded the case to the BIA to determine whether to grant Dhillon the discretionary relief of voluntary departure.