Arckange Saint Ford v. Attorney Gen. U.S., s. 21-1729 & 21-3325

51 F.4th 90

ARCKANGE SAINT FORD, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

Nos. 21-1729 & 21-3325

United States Court of Appeals, Third Circuit.

Opinion filed May 16, 2022

Argued on April 13, 2022

Robert A. Painter (ARGUED), American Friends Service Committee, Immigration Rights Program, 570 Broad Street, Suite 1001, Newark, NJ 07102, Counsel for Petitioner

Christina R. Ziedan (ARGUED), Mona M. Yousif, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: AMBRO, BIBAS, and ROTH, Circuit Judges

OPINION OF THE COURT

ROTH, Circuit Judge:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers. Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford's requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford's claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney's ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board's decision and remand.

I. Background¹

Saint Ford, a Haitian national, became involved in Haitian national politics in 2012 by joining the opposition political party, Platform Petit Dessalines (PPD). He believed the ruling political party in Haiti, the Haitian Tet Kale Party (PHTK), and its leader, then-President Joseph Martelly, were corrupt and involved in human rights abuses. Between June 2013 and June 2014, Saint Ford received anonymous telephone calls threatening that he would become a "victim" if he did not leave the PPD and join the PHTK.² Although Saint Ford did not know the identity of the callers, he testified that they told him he should join the PHTK, "and that's how [he] knew that they were members of the PHTK Party."³

In July 2014, armed men encircled Saint Ford's home and began shooting into it. They then set it on fire and burned it down. Saint Ford was not in the house during the assault; he had fled a few days earlier, fearing for his safety. He reported the attack to Haitian authorities, and investigators came to his home the next day. Investigators confirmed that Saint Ford's home "was completely burnet [sic ] out" and interviewed Saint Ford's neighbor who witnessed the attack.⁴ Haitian authorities never determined who attacked Saint Ford's home. After the attack, Saint Ford's neighbor "advised him to leave the area in order to save his life and that of his family."⁵

Saint Ford fled Haiti a few weeks later: first to the Dominican Republic, then to Brazil, and finally to the United States. Later the United States began removal proceedings against Saint Ford, claiming he was in the country without a valid travel or entry document.

Saint Ford hired an attorney to represent him at his removal hearing before an Immigration Judge (IJ). Through that attorney, he conceded removability. However, the attorney prepared and submitted a Form I-589 application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). After preparing the Form I-589, Saint Ford and the attorney had little contact. Saint Ford stated former counsel "never reviewed the application with me or told me what it said."⁶ Saint Ford also stated the attorney "never prepared me for my final hearing" before the IJ.⁷

The attorney provided scant documentary evidence to support Saint Ford's application: a few letters from Saint Ford's neighbors, a one-page police report memorializing the investigation into the attack on Saint Ford's home, his PPD membership card, and an attestation confirming his PPD membership. Shortly before the IJ hearing, the attorney submitted the Haiti 2019 Human Rights Report. That 2019 State Department Human Rights Report contained no mention of either the PPD or the PHTK.

During Saint Ford's hearing, the IJ repeatedly asked the attorney about record evidence related to the PPD. The IJ specifically asked the attorney if he had submitted any documents attesting to the history and existence of PPD as a political party and PPD's platform. The IJ explained to the attorney that Saint Ford's PPD membership card was "not sufficient to establish that there is such a party in existence," and continued to ask if former counsel had "any literature about the party[.] When it was formed, the leaders and whether – and the, the status of the party in Haiti, whether it's still in existence."⁸ Eventually, the attorney admitted he did not submit any documents about the PPD.

The IJ denied relief on all claims.⁹ Although she found that Saint Ford was credible and that he had provided sufficient documentary evidence to corroborate his testimony, the IJ concluded that Saint Ford "submitted no objective evidence" to help meet his burden in proving that he was harassed or persecuted on account of his political opinion by members of the PHTK.¹⁰ The IJ determined that "the record does not support [Saint Ford's] conclusion" that he would be killed in Haiti because the PHTK was still in power, as "[t]here was no evidence presented in the record that members of the political party of Petit Desalin are systematically targeted and persecuted in Haiti on account of their membership [i]n said party."¹¹ Further, the IJ found that there was no evidence presented that Saint Ford's fear of persecution upon his return to Haiti was reasonable.

After the IJ denied Saint Ford's claims, Saint Ford retained new counsel and appealed to the Board of Immigration Appeals. The Board affirmed the IJ's decision. Saint Ford appealed to the Court of Appeals,¹² and then moved the Board to reopen his case because, among other reasons, his former counsel provided ineffective assistance. Saint Ford argued that his former counsel "failed to submit the necessary country condition information to corroborate and support" his claims, "did not include in [Saint Ford's] application for relief or elicit during testimony critical information regarding the targeting of Mr. Saint Ford's family members in Haiti, and failed to prepare [Saint Ford] for his individual hearing."¹³

The Board denied Saint Ford's motion to reopen. It first reasoned that former counsel denied Saint Ford's allegations. Next, the Board concluded that the evidence Saint Ford proffered in support of his motion to reopen did not establish that former counsel had failed to acquire and submit easily obtainable documentary evidence related to the PPD. Then, assuming Saint Ford had established that former counsel provided ineffective assistance, the Board concluded that he did not show he suffered prejudice. It reasoned that "there is no indication that any additional evidence submitted or solicited by [Saint Ford's] former counsel would have enabled [Saint Ford] to establish a clear probability that his life or freedom would be threatened on account of a protected ground in Haiti or that he would be tortured upon his return to Haiti with the consent or acquiescence of a public official."¹⁴

Saint Ford petitioned for us to review the Board's denial of his motion to reopen.¹⁵ He contends, among other things, that the Board erred in finding that former counsel did not provide ineffective assistance.

II. Analysis¹⁶

A. Ineffective Assistance of Counsel

Ineffective assistance of counsel can deny an alien due process if it prevents the alien from reasonably presenting his case.¹⁷ We apply a two-part test to evaluate error and prejudice: (1) would competent counsel have acted otherwise, and, if so, (2) whether the alien was prejudiced by counsel's performance.¹⁸ The first prong, ineffectiveness, requires the alien to demonstrate that his counsel's conduct was not an "objectively reasonable tactical decision."¹⁹ The second prong, prejudice, requires the alien to demonstrate that there was a " ‘reasonable probability’ that ‘the IJ would not have entered an order of removal absent counsel's errors.’ "²⁰ The alien need not show his counsel's performance did, in fact, alter the outcome of the earlier proceeding, or even that a different outcome was "more likely than not"; we have explained that "reasonable probability" means merely "a ‘significant possibility.’ "²¹

i. Ineffectiveness

The Attorney General assumes Saint Ford's former counsel provided ineffective assistance to Saint Ford. That was wise. An "attorney's failure to produce easily available evidence supporting a claim for immigration relief falls below the constitutionally required standard of performance."²² Saint Ford's former counsel failed to produce sufficient country condition information to support Saint Ford's claims, including any documentation about the PPD (Saint Ford's political party) or the PHTK (Haiti's ruling political party). That information is easily available online; it is conveniently located on the PPD's website, among other places. Saint Ford's former counsel provided ineffective assistance when he failed to submit readily accessible, objective information related to the political parties at the heart of Saint Ford's claims.

The Board erred in crediting Saint Ford's former counsel's denials of wrongdoing.²³ We have explained that facts "presented in the motion to reopen are ‘accepted as true unless inherently unbelievable.’ "²⁴ There is nothing inherently unbelievable about Saint Ford's contentions that his former counsel provided ineffective assistance. In fact, his contentions are buttressed by the IJ's hearing transcript, which shows Saint Ford's former counsel failed to include relevant country condition information in...