ihab darwish, a029 878 318 (bia june 2, 2015)

8/21/2019 Ihab Darwish, A029 878 318 (BIA June 2, 2015)

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Bre, Ke WilliamBre & Coven LLP305 BroadwaySute 100New York NY 0007

Name: DARWSH IHAB

U.S. Departmen of Justice

Executiv Oc r Immigration Rview

Board Immigaton AppealsOfce the Cek

5/07 esburg Pik, Sut 2000Fa Chch l'gma 030

OHS/ICE ffice of Chef ousel - UF0 Deaware Aveue Rom 203Buffao NY 4202

A 029878318

Dae of this notice 6/2/205

Enclosed is a copy of th Board's dcision and order in th abov-rrencd case.

Enclosure

Panel Members:

M M g G.Mp G .

Sincerely,

DO caDona CarrChief Clerk

Userteam: Dock

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

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Cite as: Ihab Darwish, A029 878 318 (BIA June 2, 2015)


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U Executive Oce r Imigration Review

Decision of the Board of miaion Appeals

Fas Chuch, Virgiia 20530

Fie: A029 878 318 Bao NY

In re: IHB DRWIS

I REMOVAL ROCEEDINGS

APEAL AD OTIO

Date:

O BEHALF O SONENT Kerry W. Brez Esqire

APLICATION: otion to recse; termination

JUN. 0215

The respondent a native ad citizen of Jord appeals a Immigration Jdge's decision

dated Ast 5 203, which denied he respondents motion r recsa ad grated his motionr teination. The Depatment of Homeand Secty (HS") has not led a brief inopposition to e appea. The appea wi be dismissed.

We review r cear error the ndings of ct, icding he detemiation of credibiiymade by he Iiation Jdge. 8 C.F.R. § 003.(d)(3)(i). We review de novo a other issesincding heter te paies have met he reevt brden of proo ad isses of discretion.8 C.F.R. § 1003.(d)(3)(ii).

The respondent asserts error in the Immigation Jdge's decision not to recse himsef (Resp.Br. at 1216). The stadads r motions to recse r Immigration Jdges are those set rh in

Matter of ame, 8 I&N Dec. 303, 306 (BIA 982) (recsal reires a demonsation tat eimmiation jdge has a personal, rater tha jdicial bias stemming om a erajdicia'souce, which reslted in an opinion on the merits on some basis oher th what the jdgeeed om his picipation in the case).

Aer revieng the record in its entirety we concde hat he Immiation Jdge did not ehen he dened the motion to recse (I.J at 6-7) We disagree wih he respondents contentionthat he ct that his atoeys a has ed complaints with he Oce of rofessionalResponsibility ad the Oce of e Chief Immigration Jdge constittes extadicial" soceshich created a bia against his attoeys aw (Resp. Br. at 3). The Immigration Jdgesbehavior or statements on he record in this paicla cae do not sppot a nding hat he w

biased or had predged the case See Matter o Exame supra. rheore, whie therespondent may not have gotten eacty the otcome he wanted the Immiation Jdge did note against m on e most imotant isse ie. removabity.

We disagree with he respondents contention hat his motion r a chage in vene shodhave been ted at the otset of proceedings (Resp. Br. at -2). Motios r a change ofvene may be granted when good case is shon by the aien. See e.g Romero-orales v I25 .3d 125 (2d Cir. 1994) see also CFR. § 003.20(b). Once removal proceedings aeinitiated ad usdiction vested in the Imigration Co, Immigration Jdge possessesdiscretionay athorty to chage vene pon a shong of good case by the moving party. SeeMatter of Rahman 20 I&N Dec. 80 483 (BI 992); 8 C.F.R. § 003.20(b). Good case is




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A029 878 318

deteined by balancing the ctors relevant to the venue issue, including adminisrativeconvenience, expeditios treatment of the case, ocation of witnesses, and costs of ansportingwitnesses or evidence to a new location. See Lovell v. INS, 2 .3d 48, 460 (2d Cir. 1995)Matter of Rivera, 19 &N Dec. 688 (BIA 1988); Matter of Velasquez, 19 I&N Dec. 377(BA 1986). Inasmuch as the Immigration udge teinated proceedings, he did not need toexplicitly rule on the respondent's motion r a change of venue (I.. at 8-9). Furtheore, a themmiation udge noted, a change of venue wa previousy granted to he Newark mmiationCourt, where proceedings were teinated because the charging document was deemed to beinsucent (IJ a t 2-3, 8)

The respondent asserts that proceedings should have been terminated with prejudice ratherthan withot prejudice since the original Notice to Appear NTA) was decient, and the second NTA appeared identic to the original NTA (Resp Br at 710). We disaee Dismissalwithout predice is not a decision on the merits of the claim. See Cooter & Gel v HartmarxCorp, 496 US 384 (1990) (dismissal wihout prejudice" is dismissal that does not operate asadjudication on the merits, and thus does not have a res judicata eect) n anting therespondent's motion, the Immigration Judge did not make ndings of ct or concusions of lawon the substantive issues in the cae

The regulations provide r teination of proceedings, but do not reqire termnation to bewith prejudice. See 8 C..R § 12392(. he respondent has not demonsated that ternatingproceedings without prejudice was ndamentally unr. See Matter of Santo, 19 &N Dec10 (BIA 1984) (an alien in deportation proceedings has been denied a ir heang ony ifprejudiced by some deciency so a to deprve him of due process) The respondent is notunduy exposed to remova if DHS were to e removal charges in the tre, it wod stil bereqired to prove the respondent's removability by clear and convincing evidence Whle therespondent is correct that the DHS has acted inconsistently by saying that he abandoned hsstatus, whie aowing him to petition r his wi and children, we decine to speclate on reactions (Resp Br. at 10) The Immigration udge's decision to dismiss wihot prejudice wasproper.

The respondents disagreement with the outcome of the Immigration udges decision isinscient to demonstrate that the outcome was the result of bias or pre-udgment rather thhs view of the cts and evidence presented As such, there is insucient suppo r therespondents caim of bias by the mmigration Judge to waant the concuion that a r hearingrequired his disquaication. Therere, his motion to disquai the migration udge will bedenied.

On appea, the respondent submited updated but cumuative evidence regarding his motionr recusal which we have addressed above. With his brie, the respondent submited a newmotion to recuse and evidence showng that the compaint hs atoeys law rm had ed withthe Oce of Professiona Responsbility was being reviewed (Tabs A, B). The respondent asosubmited evidence showing that ur of his reatives had permanent resident cards, and that hischid had been bo in the nited States (Tab C; Resp. Br. at 10) Wih the supplement to hisbrie, he submied evidence showng that the complaint his atoey's aw rm ed wih heOce of Professional Responsibiity had been decided (Tabs A, B)

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A029 878 318

The complan led agans he mmgraon Judge dd no nvove he curren case Raher, nvoved oher ce a he Immaon Judge had decded nvolvng an aoey om heresponden's aoey's aw r Fuheore he mmgraon Judge does no seem o havebeen dscplned n sad case Raher he Oce of Prossonal Responsby concuded ahe Imgraon udges procedura handng" of he case was napproprae (ab A whsuppeen o bre" No specc menon was made of he aw rms conenon ha eImgraon Judge had made deamaory saements agans the aoey and ed anunsubsaed coplan agans hm (Tab A wih suppeen o bre.

Accordngly he lowing order s enered

OER: he appeal s dsssed

HE BOARD

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UNITED STAS DEPARTMENT OF JSTICEEXECTIVE OICE O IMMIGATION EIEW

NITED STATES IMIGATION COTBFALO, NEW YOK

In the ater of:

DAWISH, IhabA# 029-878318

esponden

CHARGES:

MOTINS

IA§ 21(a)(7)(A)(i)(I)

otion to ecuseotion to hange Venue

N BHALF O RESPODENTShari L Astalos, Esq.retz & oven, LL 305 Broadway Suite 00ew York, ew York 10007

I EMOAL POCEEDINGS

Documentation Requireents

O BEHAL O THE DHSCaro ridge, EsqAssistant Cief Counse30 Delaware A venue, Suite 203Buao New York 14202

DCISION AND ODE OF THE IIGATION JDG

espondent's motion to recuse is DENIED. or the reasons articulated below,tese removal proceedings are TEMINATED WITHOT PJDICERespondent's otion to cange venue is therere OT EACHED

I ACTS AD POCEDAL HISTO

hab arwish is not a citizen or national of the Unite States (Exh He is anative an citizen of Jordan Id. He was admitted to te nited States as a awlpeanent resident on arch 5, 996 Id

On January 7, 20 the Department of Hoeland Security "DHS) issued

Respondent a Notice to Appear (Original NTA), whic carge him as subject toremova pursuant to A § 212(a)(7)(A)(i)(l) 1 espondent was originay scheduled to

I According to NA § 212(a)(7)A(i)(}, "Except as otherwise specically provided in this Act anyimmiant at the time of application r admission- who is not in possession of a valid unexpiredimmigrant visa eentry permit border crossin identication card or other vaid entry document requiredby this Act and a valid unexpired passport or other suitable travel document or document of ideny annationality if such document is required under the regulations issued by the Atoey General under section21 (a) .. is inadmissbe

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pper befre the Buo Igrtion Co (Cour) on Mrch 18, 2011; however,pror o th herng, the Cou grted Respondent's reqest o change he vene oResponden's proceedings o the ewrk Igron Co (Newrk Cour)

On pri 9, 201, Respondent ppered befre U.S Immigrion Jdge en

A Khan (Jdge Khn"), o the ewark Cour, fr ster cendr herng hte, dge an cceped Respondens pedngs and schedued the tter fr nndvd erts heang Responden nex ppered befre he ewark Cot onFebury 23 2012 Judge Khan hen terned Responden's reov proceedngswho prejdce, pprenty concdng ht he goveents NA ws cuydecen See Dgi Audo Recordng o Herng (Feb 23 2012) On the record, hefowing exchge took pce between udge Kn nd goveent conse:

The dscusson we hd o he record ws he Corsconce wh he legons nd the chrge on the becse the Cot ws ssing ths hd to do

with bandonen [o w peaen residenstus] B nothng reeced in he egions or nthe charge wod ed one o concude th Its sbased on why ths ndvd was here I hve nospporng docuenaton I undersand the budeno he responden n he tter o bndoen or nrescssion, nd I so nderstnd the burden o hegoveen Bt s I noed , ths NA scty ncorec I thnk egton fr is nocoect uness you're eging, sir, h when heenered or when he tepted, when he sought

dsson, he no onger hd his w peanentresdent] sts becse he hd bdoned i Is thcorec?

G Yes, dge, and he N doesnt reec th

No

G nd, geed, dge, he s consing heprobe s hs hng he N shod hve beeneher not seved

Rgh

G Or ended bee got o s here n Newak

OK.

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G:

K:

oud jus e he Court hs is a change of venue, acase o [Buao] ew York This s aso a casehere counse ed r the NTA o be pused, o beseed o the Court Ad as such I do kno the

revie process hat occurred Because ths is no an T hats issued by us It wa issued by [USCustos ad Border Protectio] at te borer. So Idont kno ha hey were going to do, or hat Sotheres a o of issues here My contetio is justterinae te NTA wthou prejudice

Im ne wt that Let's do that Wthout prejudice,couse obvousy So at hs tie based on herato bere te Cou ad based o theposito by e Departe of Hoeland Secury the

Cour il einae he oice to Appear daedJanuary 17 2011 wthout prejudice a teinateproceedigs against Respodet a ths te

Id O Aprl 2012 the DHS issued Respondet a secod T (Second TA") (Exh1) again chargig h as subjec o reova pursuat o A § 212(a)(7)(A)(i)(I) TheSecod T A-ch does not expicty alege hat Respondet abandoed his lawpeanent resdet statusis aegedy detcal o the Orgna TA See RespondentsMoton to Ternate Proceedngs a 4 (Oct 24 202)

These proceedgs were coenced n uao e York, wth the lig of heSecond TA wi e Cour on Apr 3 2012 See (Exh 1) O ue 1 2012Respodet ed a oio to change veue The goveet led its opposition to teoton o une 7, 2012 ad e Cour deied the otio o ue 14, 2012 Order of theIJ (Ju 4, 2012) Respodet ed a reee otio to cage venue on Augus 30202, and the goveent led ts oppostion o Septeber 11, 2012 The Cour denedthe oio on Ocober 30 2012 Order of the I Oc 30 2012)

O Ocober 24, 2012, Respoden ed a otion to eriate proceedigs or inthe ateative to chage veue The goveet le a response o Noveber 6 202,statig at it wa opposed to Respodents otios to teate or hage veue TheCou iniialy deed judget o Respondets otios but utiately the otionswere dened aer a hearg held on oveber 16 2012 See Order of he (ov 14

(sic), 202)

espode s sceded o ppe bee he or o Feb ;hoever o Apr 9 203 Respode ed a oo o chage veue Aso on Ap 920 Responden ed a oto o recse O Apr 1 20 he DS ed sresponse satg hat as uopposed to esponens oons O Juy 29 20Respodet ed renewed vesos of boh o s oions

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II. DOCUMENTARY EVIDENCE

The fllong documents ae ncluded n te ecod o poceedngs:

Exhibit 1:

GroupExhibit 2:

2A:

28:

2C:

Notce to Apea, dated Apl 3, 2012

Documents Submed by te HS on Novembe 16 202Memoandum o Ceaton o Recod o Lal PemanentResdence, dated March 15 1996 (ndcatng tat Resondent aadmtted to the Unted Sates as a lawl emanent esdent onMach 15, 1996)Recod o Depotable/nadmssble Alen (Fom 23"), datedanuay 20, 201Recod o So Statement n Admnstatve Poceedngs, datedanuay 17 201

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A Resondents Moton to Recuse

n suot o te moton to ecuse, Resondens counsel agues that e Coutsould ecuse tsel because te mmgaton judge has] a ersonal, athe than judcalbas stemmng om [an extajudcal souce" Moton to Recuse at 23 (Ap. 9, 203)(ctng Matter of Eame, 18 &N Dec 303 (BA 982)) Accodng to Resondentscounsel ts bas stems om the ct that the Cour ntated a dscplnay complant . aganst a Betz & Coven attoey" and [n esonse Betz & Coven led a coss

comlant aganst udge Montante." Id. In suot o te eneed moton to ecuse,Resondent's counsel epeated ts allegaton and also clamed hat "IJ Montante asexhbted easve bas aganst Betz & Coven" See Reneed Moton to Recuse at 2-3(ul 29 2013) (statng "I Montante absolutely cannot act mpaally toad mateseesented by ths m")

Pelmnaly, te Cout notes tat ts dscplnary complant aganst a Betz &Coven attoey s no longe endng See i at ab A. Contary to Resondents esentasseton hoeve, te comlant as nethe volous" no wtout substantaleasonng" at 2; see also Ballentnes La Dctonay (200) (denng volous as,So clealy and alably bad and nsucent as to eque no agument o llustaton to

so the caacte as ndcatve o bad t uon a bae nsecton") In ct thecomlant as dsmssed because the Oce o Geneal Counsel as unable to ndcea n convncng evdence o a volaton o the Rules and Pocedus o PossonaConduct Pacttones]" Reneed Moton to Recuse at ab A (Jul 29, 2013)(emass added) (notng that the clea and convincng" standad n dsclnayoceedngs s moe than a eondeance o te evdence, the standard n cvlcases)

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Furtheore alhogh he Oce of General Consel dismissed he charge ofisconduc disciplinay consel did advise Brez & Coven ha:

[W]e noe ha [he Brez & Coven aoey involved] ould

have aemped o avoid e ircmsanes ha led o he inabsenta order agains [his clien] Knong [he cliens]medical and nancial siuaion [he aoey cold havemoved r a elephonic appearance r [he clien] ih hemoion o hange vene as he did r himself JdgeMonae may have graned ha moion as he did r [heaoey] and [he cliens] appeace as ell a hehearing may have been excsed However [he aoey]did no seek a elephonic appearance r [he clien] in hamaer and Jdge Monane hen ordered him removed nabsenta hen he did no appe

I. a Tab A a 3.

In regards o he removal proceedings ha ere a he he of he Corsdiscipliny complain he Cor noes ha he Boad of mmigraion Appeals (BA)recenly issed a decision on an appeal led by he responden in hose proeedings howas represened y a Brez & Coven aoey). Se Earl Sheleood Mahes A20129 BIA Jl 23 2013) The BIA ssained ha respondens appeal; hoever, isdecision can hardly be characerized as a rebuke of he Corts aions

In his case, the respo nden 's atoney er in assingha his moion o change vene old e graned . .Fhermore he Immgato n Juge no e in denyinge moion o reopen and in expecing ha he respondenwold appea in person given ha he moion o changevene only requesed pemission r his consel o appearby elephone

I a 3 emphass added and iaions omited) The Board nd he maer o be aclose case" and oped o reopen in ligh of he oaliy of he ircmsances

In a leas o oher recen maers (nrelaed o hese proeedings), espondensconsel has led moions o recse along he lines of her presen agmen e Cor

onins o nd ha i old be inappropriae o cross-cie o oer maers in nrelaeddecisions oever he Cout is compelled o poin o ha hose decisons direclyconradc cousel nndd asseion ha he o s unable o ac in a impiamaer oad he members o his m ile ere is a complain led agains himReneed Moon o Recse a 2 Jl 29 203. In boh of hose maers he Courdenied he moions o recse b rane e respondens' moions o change vene onheir meis

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For the benet of boh parties in these proceedings, the Cou will once againrepat the reasoning nd legal conclusions tat lea it to believe that recusal is neithermeite nor apropate uner these circumstances:

Resondent coectly cites Maer of Exame, 1 8 I&N Dec 303 (BIA 982) as the

case goveing recusal of immigration udges; however the Cout strenuously disagreeswith esonent's interetation o te prase "juicial bias stemin om [an]extraudicial source\ Se Motion to ecuse (Apr 9, 20 3) Even assuming that all ote accusations leele against te Cour were true, no udge is requred to recuse himselom a case erely because he as iscipline the curent attoey or is or herassociates) in the past

xae hols tat rcusal requires a emonstration that the imigration udge hasa personal rather than udicial bias stemming om an eaudicial source whicresulte in n opinion on the merits on some basis other than what the uge lee omhis paticipation in the case 8 l&N Dec at 306 (stating that a eception exists where

the uges conuct is peasively preudicial). Te phase etrauicial source is ate oa that eists outsie o the immigration cous Distrct and circuit cous haeequently reecte the agument that a udges real o an aoey to a isciplinarycommittee constitutes ounds r recusal. See Gwynn v. Walr 532 F3d 1 304 ( tCir 2008) (holding that a district cou id not e in enying a motion r recusal aerrering the aoey to a state a r investigation)

There has been no suggestion tat te Cout has relied upon any extrauicialinration or improper asis in deciding any issue in this matter Se Lite v UniedStates, 5 0 US 540 5 55-56 (U 1 994) (O]pinions me by the uge on te basiso cts introduced or events occuing in the course o the cuent proceeings or o

prior proceedings do not constitute a basis r a bias or patiality motion unless theyisplay a deepseate voitism or atagonism that would make ir udgentimpossile ) ather Respondent asks r a presumption o ipatiality based upon anunrelated iscilinary coplaint uch a resumption would be iational in light o thect hat te maoity o usictions ae hel that udicial reals o counsel risciplinay revew o not, in themselves constitute ounds r disqualicationCnklin v. arringon Tp 476 F Supp 2d 458 464 (M. Pa 2007) As the Conklincou coectly noted, there has been wiespread agreement in his rega

I]n Curle S John ' Univerit 7 F Sup 2d 359(DN Y 998) r example] plaint suggested that the

cout s Rule 1 sanction against is attoey in a unelatedproceeing constitute a sucient asis rdisualication he cou enie plaintis motion torecuse opining that "Without ore te imposition osnctions oes not waant a recusal Id at 363 ( citationsomitte) As pa o the ai decidendi the cou obseetat the laintis motion ile to present any etraudicialcts i e cts inepenent o te sanction itsel d In the

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absence of such evidence, the cout held that the sanctionof counsel was patently insucient to show the equisitepesona bias o pejudice necessay disqualicationSee also Honneus v. United States 425 F Supp 164 D.

Mass 977) denying motion to ecuse whee judgeeed attoey to ba association gevance committee asa esult of unpofessional conduct) Joyner v.Commissioner o/Correction 55 Conn App 602 740 A2d424 Conn 1999) eing tial counsel to statewidegievance committee and llow-up inquiies as to status ofinvestigation did not equie disqualication of judges inhabeas poceeding) Marin v. Beck 112 Nev. 595 915P2d 898 ev 996) nding that judge's ling of pejuycompaint against counsel does not constitute gounds ecusa); Stae v. Mata, 71 Haw. 319, 789 P2d 1122 Haw

1990) ering attoney to disciplinay boad andesponding to inquiies of boad ae not ounds disquaication)

The Cout is also cognizant of an adviso oponauthoed by the Judicia Conence's Advisoy Committeeon Codes of Conduct which opines that judicia eferal disciplinay eview is not gounds ecusal Specicallythe Committee state:

"W]hen a judge les a complaint of unpossiona

conduct against a awye in compliance wth Canon33) and the laye is bee the udge as counse in thecase giving rise to the unpossional conduct o in a latecase, it is not equied that the judge ecuse on gounds ofbias o pejudice simply because the complaint was led

Guide to Judiciay Poicies and Pocedues IV149 1998)

Conkin 476 F Supp 2d at 464-65 As peviously stated by the Cou in the sepaatemaes mentioned above), the Cout s not able to futhe comment on condentialcomplaints that have been led by o against the Cou Howeve the Cour states theth time now that it is not pepaed to take the extaodinay step of ecusing itself om

al mattes epesented by [appaently any aoey at] Betz & Coven. Motion toRecuse at 3 (Ap 9 2013) Despite the ct that the Court peviously inmedespondents ounsel of the aoeited ase aw hih ovehelminly eescounsels position in this egad Respondent has once again not aticulated any speciccts that woud meit ecusal. Acodingly Respondents motion to ecuse is E

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B Resonent's Removal Proceedins

Te parties appear to be in agreement tat te appropriate venue r teseroceeings is te eark mmigration Cout See Motion to Change Venue (Apr 9,203) nd S Memoranum in esponse to te Motion (Apr. 203) As indicated

above oever te Cout previously granted a cange o venue to te eark Coutwit the result tat te proceedings ere terinated because te cging ocument aseemed to be insucient. See supra at 2-3. Te Second TA appears to be identical tote Original T A, as alleged by Respondent Terefre it is very likely tat cangingthe venue o tese proceeings back to te eark Court oul ultimately lead to tesae outcome. Te HS as not explaine y it reissue te same TA aergoveent counsel in Neark conceed to Juge an tat te ocument as"consing an insucient. I.

Te consion in tis atter apears to ste om a isagreeent over eter ornot te goveent is required to explicitly allege in te T A tat an alien laully

adited fr ermanent residence in te United States as abandone or relinquisedtat status, in order to carge te alien as inadmissible under INA § 212(a. ee NA § (a( 3)(C n practice tis our does not orinarily require suc an explicitallegation (at least ere te context o te proceeings makes clear tat te goveenthas implicitly allege abanonment) oneteless te Court ns no eor in ugeKans decision to terinate itout prejudice2 Te Court is not in te practice osecondguessing te soun ecisions o anoter US . Immigration udge

Accordinglyand strictly limited to te cts and circumstces o tis caseteout ill terminate Responents removal proceeings without pejudice, to allo tegovement (i it so cooses) to e a otice to Appear tat compo it Judge Kans

instructions an conces See upa at 2-3 The Cout makes no ning a toResponents removability or a to te proper venue o tese proceeings

Te Cout shall enter te flloing orders:

2 n ct, the Court does agee that t would be prerable and advsable r the govement to be moreexplic t in ts allegatons. Ths is especally tue in light of the ct tat an alien lawlly admtted rpermanent resdence can be readed as seeking admisson nto the Unted States r more than one reasonSe NA § I O (a)( 3)

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Orders

IT IS ODED that Respondent's motion to recuse is DENIED;

IT IS FUTHE OEED that these roceedings are TEMINATED

wthot prejudice and

IT IS FUTHE ODED that Respondents otion to change vene is notreached.

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