Argued: April 28, 2015.
Petition for Review of an order of the Board of Immigration Appeals. No. A076 203 300.
For ASHRAF HABIB, Petitioner: Helen Harnett, Attorney, IMMIGRATION ATTORNEYS, LLP, Chicago, IL.
For LORETTA E. LYNCH, Attorney General of the United States, Respondent: OIL, Attorney, Jonathan A. Robbins, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
Williams, Circuit Judge.
Ashraf Habib, a 56-year-old citizen of Pakistan, petitions for review of an order of the Board of Immigration Appeals denying his motion to reopen on the ground of ineffective assistance of counsel. Habib was charged with removability for misrepresenting a material fact--his marital status in Pakistan--to gain residency. At a hearing before the immigration judge, Habib's lawyer made a couple of missteps that led to Habib being ordered removed on the ground that he had obtained immigration benefits based on a material misrepresentation. Habib filed an appeal with the Board, as well as a motion to reopen based on ineffective assistance of counsel. The Board affirmed the IJ's decision and rejected Habib's arguments that his lawyer was ineffective. We conclude that the Board abused its discretion when it determined that Habib was not prejudiced by his lawyer's mistakes, and we grant Habib's petition for review.
In the late 1980s, Habib married a woman in Pakistan and had three children with her in that country. It is unclear when or how Habib came to the United States after these events (the record shows only that he entered the country in 1981 on a tourist visa). But in 1996, he married Ruby Bualice, a U.S. citizen, and three years later adjusted his status to that of lawful permanent resident based on that marriage. Habib did not disclose any children or prior marriages in his application to adjust status or during the related interview. He applied for naturalization in 2004 and again neglected to list any children or prior marriages on the form. When interviewed the following year by officials of United States Citizenship and Immigration Services (USCIS), he told them that Bualice was his first wife.
USCIS denied Habib's application for naturalization in 2010 on the ground that he had obtained lawful permanent residency by fraud and thus was ineligible for naturalization. See 8 C.F.R. § 316.2(a)(2). (Bualice died in 2008, before USCIS ruled on Habib's application.) In its decision, USCIS explained that its " investigation revealed" that when Habib married Bualice and obtained permanent residency based on that marriage, he was still married to Feroza Muhammad Arshraf, a woman in Pakistan with whom he had fathered three children. USCIS stated that this information was confirmed by " [c]orrespondence from the Provincial Headquarters Sindh, National Database and Registration Authority (NADRA) in Karachi, Pakistan." By not disclosing his Pakistani wife and children on his adjustment application, USCIS concluded, Habib had obtained immigration benefits in violation of 8 U.S.C. § 1182(a)(6)(C)(i). As further evidence of Habib's " fraud/misrepresentation," USCIS cited a letter from staff at the nursing home where Bualice had resided from 2001 until her death in 2008. The 2006 letter stated that Habib had never been " seen at [the] facility," indicating that Habib " had
never gone to visit" Bualice. Habib was issued a Notice to Appear charging him with removability under 8 U.S.C. § 1227(a)(1)(A) as an alien who was inadmissible at the time he adjusted status both because he had obtained permanent residency by fraud or willful misrepresentation of a material fact, see id. § 1182(a)(6)(C)(i), ...