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Afrouz Kheirkhahvash v. Reza Baniassadi

January 13, 2011

AFROUZ KHEIRKHAHVASH, PLAINTIFF-APPELLANT,
v.
REZA BANIASSADI, DEFENDANT-APPELLEE.



No. 09 L 9943 Appeal from the Circuit Court of Cook County Honorable Ronald S. Davis Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gallagher

Presiding Justice Gallagher delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

Plaintiff-appellant, Afrouz Kheirkhahvash, filed a complaint against defendant-appellee Reza Baniassadi, alleging legal malpractice and fraud based on Baniassadi's representation of Kheirkhahvash in immigration proceedings. Baniassadi filed a motion to dismiss pursuant to section 2-619(a)(5) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2008)) on the grounds that the complaint was time barred under section 13-214.3 of the Code (735 ILCS 5/13-214.3(b), (c) (West 2008)). The circuit court granted the motion to dismiss with prejudice and denied Baniassadi's request for attorney fees and sanctions. On appeal, Kheirkhahvash contends that the circuit court erred in dismissing the complaint as time-barred where a factual dispute exists as to when Kheirkhahvash discovered Baniassadi's negligence, the negligence alleged was continuous and Kheirkhahvash incurred increasingly severe injuries, and a language barrier prevented the timely discovery of the injury and damages. Kheirkhahvash further contends that Baniassadi's acts of fraudulent concealment bar him from raising a statute of limitations defense. For the following reasons, we affirm the judgment of the circuit court.

BACKGROUND

Kheirkhahvash was born in Iran. She came to the United States on a visitor's visa on August 3, 1999. Her visa was set to expire in February 2000. Kheirkhahvash was fluent in Farsi and could not read, speak or write English. She retained Baniassadi, whose first language is also Farsi, in January or February of 2000. Baniassadi obtained an extension of her visitor's visa to July 2000. Kheirkhahvash also sought Baniassadi's advice on the issue of remaining in the United States permanently. According to Kheirkhahvash, she told him that she had come to the United States because she was afraid of her abusive husband and that she also wanted Baniassadi's help in obtaining a divorce. Baniassadi told her that fear of her husband was not a sufficient reason for her to obtain asylum and that she should seek asylum on political grounds, based on a fear of persecution by the Iranian government. He asked about her political involvement and she told him she had never been involved in politics. He told her he would prepare a statement that he had used successfully with other clients.

Baniassadi prepared an asylum application that contained Kheirkhahvash's personal information. In the section of the application that asked for the information regarding the nature of the asylum claim, he included a reference to an attached exhibit. Kheirkhahvash signed the application itself (without the exhibit) on February 16, 2000. In June 2000, she signed two more documents, an attorney appearance form and another document containing biographical information.

On August 1, 2000, Baniassadi filed Kheirkhahvash's asylum application. A verified personal statement was attached to the application. According to the statement, Kheirkhahvash became a supporter of Mojahedin Khaleq*fn1 (MEK) when she was in high school. It stated that she was put on probation by her school's Islamic committee and told that if she did not stop her anti-Islamic activities, she would be expelled from school and reported to the revolutionary guards. The statement claimed that although Kheirkhahvash passed her university entrance exam, she was put on probation for two years and ordered to support the Islamic regime, comply with Islamic dress code and attend her local mosque. When she was finally admitted to the university, she was put on probation for refusing to attend the mosque and voicing opposition to the regime. The university then reported her to the revolutionary guards. According to the statement, she and her father were both detained by the revolutionary guards and were interrogated and tortured. She married a man who allegedly was also a supporter of MEK and worked as a journalist for a magazine that was shut down by the regime. He was also interrogated and tortured by the revolutionary guards. The statement concluded by stating that Kheirkhahvash was detained and tortured a second time and upon her release, she went into hiding and was able to get out of Iran and come to the United States.

The statement was signed, but Kheirkhahvash maintains that the signature on the statement is not hers and points out that it does not match other documents containing her actual signature. She also maintains that she did not see the statement until Baniassadi sent her a version of the statement that had been translated into Farsi in late August/early September, after her application had already been filed. He told her she needed to memorize the statement for her upcoming interview with immigration officials. Kheirkhahvash told him that the statement was false, she knew nothing about the MEK, her husband had never been a journalist and was not a supporter of MEK, and she could not testify to such facts. Baniassadi told her that because the application had already been filed, she had no choice but to testify to those facts or she would be denied asylum and would be deported to Iran for filing a false application.

At the immigration interview, Kheirkhahvash testified through a translator to the facts in the verified personal statement. At the conclusion of the interview, Baniassadi told her that her application would be approved and that she would get her green card. In fact, the asylum application was denied and she was served with a notice to appear in immigration court for a removal hearing. When she asked Baniassadi to explain the meaning of the notice, he told her that her application had been referred to an immigration judge and it would be reconsidered and granted. He again told her that his other Iranian clients had claimed persecution on account of their sympathies for the MEK and were granted asylum. He warned her that if she tried to withdraw her personal statement, the immigration judge would order that she be deported to Iran.

Kheirkhahvash said that before her removal hearing, Baniassadi told her that her father had to testify to the facts in the personal statement. When Kheirkhahvash showed the statement to her father, he became very angry with her. He refused to testify and tried to get Baniassadi to withdraw the asylum application. He said that he did not want to lie, that nobody in Iran supports the MEK, and that he did not want to get involved in anything to do with the MEK. Her father eventually agreed to testify after Baniassadi persuaded him that if he did not testify, his daughter would be deported to Iran.

On April 15, 2002, a hearing was held before an immigration judge and Kheirkhahvash's father testified to the facts in the personal statement. The government attorney introduced evidence that the MEK was listed as a terrorist organization by the Attorney General of the United States. Kheirkhahvash maintains that her father's testimony was inconsistent, and that Baniassadi requested a continuance because he realized he needed additional evidence. He prepared an additional affidavit for her mother to sign that described in detail how Kheirkhahvash was beaten and tortured because of her support for the MEK. On April 24, 2002, Kheirkhahvash testified according to the facts in the verified personal statement. The immigration judge denied her asylum application and her withholding of removal request, finding that she was a member of a terrorist organization and that she posed a danger to the security of the United States. The judge ordered that she be deported to Iran.

On May 24, 2002, Baniassadi filed a motion to reconsider. The motion was denied on July 12, 2002, and Baniassadi filed an appeal with the Board of Immigration Appeals on August 12, 2002. On October 10, 2002, Kheirkhahvash was taken into custody by the Department of Homeland Security, Immigration and Customs Enforcement. She was released from detention under an order of supervision dated February 4, 2003*fn2 . On October 8, 2003, the Board of Immigration Appeals entered an order affirming the denial of Kheirkhahvash's asylum application and withholding of removal on the basis of her admitted affiliation with MEK. However, the order returned the case to the immigration judge for consideration of Kheirkhahvash's claim for protection under the Convention Against Torture.

Sometime after her release from custody, Kheirkhahvash consulted with and subsequently retained new counsel. The record contains a consent to attorney withdrawal dated November 24, 2003, withdrawing the appearance of Baniassadi as Kheirkhahvash's attorney. It also contains a consent to substitution of counsel dated November 25, 2003, authorizing the appearance of her current attorney. Both documents are stamped as being received in court on December 3, 2003. In a letter dated November 24, 2003, and file stamped November 25, 2003, Kheirkhahvash requested the Attorney Registration and Disciplinary Commission (ARDC) to investigate Baniassadi for advising her to file and testify falsely with regard to her asylum application. On July 14, 2004, Kheirkhahvash's current attorney filed a motion to withdraw her original asylum application, contending that it was the product of ineffective assistance of counsel. On August 21, 2009, ...

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