Attorney John Wheat Gibson has provided via email the following motion on behalf of asylum for Rrustem Neza. The motion will be filed officially on Nov. 7, 2007-gm
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
FALLS CHURCH, VIRGINIA
In the Matter of
RRUSTEM NEZA
NURIE NEZA
XHELADIN NEZA
Petitioners
IN ASYLUM PROCEEDINGS
PETITIONERS’ REPLY TO DHS OPPOSITION
TO AMENDED MOTION TO REOPEN
TO THE HONORABLE BOARD OF IMMIGRATION APEALS:
Petitioners RRUSTEM NEZA, NURIE NEZA, and XHELADIN NEZA hereby file their Petitioners’ Reply to DHS Opposition to Amended Motion to Reopen, respectfully showing the following:
Petitioners filed their Amended Motion to Reopen on Account of Changed Circumstances on or about 9 October 2007, together with exhibits proving that during September 2007 at least three Albanian newspapers published front page articles naming Rrustem Neza as having identified the assassins of Democratic Party leader Azem Hajdari, reporting that he had been denied asylum in the US, and announcing that he soon would be deported from the US to Albania. Alerted to Rrustem Neza’s imminent return, therefore, the assassins would be waiting for him with sharpened knives.
The DHS filed a Department of Homeland Security’s Opposition to Respondents’ Amended Motion to Reopen on or about 5 November 2007, readily acknowledging that Mr. Neza likely will be murdered on account of his political opinion if returned to Albania, but declaring it to be his own fault for trying to rally public support for his efforts to avoid being delivered into the hands of the assassins.
His efforts have begun to awaken people who value elementary fairness and ordinary decency in legal proceedings. Congressman Louie Gomert on 1 November 2007 filed two private bills in the United States Congress, one to prevent the deportation of Mr. Neza and make him a legal resident of the US, and the other to stop the deportation until he has an opportunity to present the facts of his case to an immigration judge. Congressman Gomert also wrote a letter that was printed in the Lufkin Times newspaper describing the conduct of the government in its eagerness to kill Mr. Neza. That letter, as published, is attached as Exhibit 1. The private bills are attached as Exhibit 2.
The Petitioner has asked the BIA and the Circuit Court to allow him an opportunity to present the facts of his case to an immigration judge, claiming that he is entitled to do so by the Constitution of the United States and by the treaty obligations of the US. It is not necessary, however, to invoke the denial of due process that Mr. Neza’s previous attorney obviously caused to Mr. Neza by his ineffective assistance. Mr. Neza is entitled by 8 USC §1229a(b)(4)(B) to the right of which the government continues to seek to deprive him:
There is no need to invoked the Constitution when the immigration statute itself guarantees a fair hearing. 8 USC §1229a(b)(4)(B) (the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross examine witnesses presented by the Government”) Rehman v. Gonzales, 441 F3d 506, 508 (7th Cir 2006) (aliens have both statutory, and regulatory, entitlements to present all material evidence at impartial hearings. Any proceeding that meets these requirements satisfies the Constitution as well.” (citations omitted)). The specific statutory right with which the immigration judge interfered in this case was the alien’s right to “a reasonable opportunity…to present evidence.” Kadia v. Gonzales, slip opinion No. 06-1299 (7th Cir—7 September 2007)
The clearly established statutory right to “a reasonable opportunity…to present evidence” plainly was denied to Mr. Neza by the incompetence of Mr. Haber in preparation for and trial of removal proceedings, and in the appeal filed by Mr. Haber’s partner Mr. Roth, whose main concern was to prevent embarrassment to Mr. Haber, rather than effective representation of Mr. Neza, as any lawyer can see by reading the transcript of the hearing and the text of Mr. Roth’s brief and his Motion to Reopen to the BIA.
In its Opposition the DHS simply ignores the law, and makes the conclusory allegation that “Respondent’s former counsel zealously represented him.” Of course, the DHS makes no attempt to show any examples of that zealous representation. There are none. The government simply hopes that its ranting will divert attention from the specific facts of the case to its abstract and incessantly repeated mantra that “the regulations ‘plainly disfavor’ motions to reopen.” As if that were sufficient reason to abandon the laws and treaty obligations of the United States in order to kill Mr. Neza. The government makes such noise to distract the BIA’s attention from the undisputed fact that former counsel was not even aware at trial that his own client had with him the death certificates of the two murdered cousins with whom he had hidden in Albania after the Hajdari assassination.
Perhaps most outrageous, however, is the willingness of the DHS to seek litigation advantage by lying to the BIA knowingly about things its attorney could not possibly have any knowledge of. Although the BIA publishes Disciplinary Actions Under Rules of Professional Conduct, the names of government attorneys never appear there, no matter how dishonest and unethical they may be.
The DHS writes that the news stories in the Albanian newspapers announcing the imminent return of Mr. Neza to the hands of the assassins “do not contemplate evidence that is material…” because “The news articles originate from the United States.” The DHS statement is not merely stupid: it is a deliberate misrepresentation. One of the two articles in the Korrieri, 5 September 2007, is essentially a translation to Albanian of a request for assistance that Mr. Neza’s attorney published in the Texas Civil Rights Review, in English, one of the articles in Agon, 12 September 2007 appropriately cites the Associated Press, and one of the articles in the Tirana Observer, 13 September 2007, cites the Dallas Morning News, all of the reports include extensive background on the Hajdari assassination and ensuing investigations, which does not appear in any of the U.S. media. Worse, is the plain lie that “Any interest in Albania about Respondents’ case is a direct result of Respondent’s attorney’s own webpage and attempt to publicize the case in the US and in Albania.” Of course, if publicity generated by Mr. Neza’s attorney attracts the attention of the assassins so that they murder Mr. Neza on account of his political opinion when he returns to Albania, Mr. Neza will be no less dead. Neither human life nor logic are of any interest to the DHS. Unfortunately, neither is truth. Mr. Neza’s attorney does not have a web page. Moreover, Mr. Neza’s counsel has done nothing to publicize the case in Albania, contrary to the DHS statement. Not to confuse the BIA with mere fact and truth, the DHS provides no evidence that Mr. Neza’s counsel has tried to publicize his case in Albania. The DHS also contradicts itself: it says Mr. Neza will be killed in Albania on account of his political opinion now that the assassins have been alerted to his arrival, but his asylum claim has never had any merit. The DHS should not be allowed to have it both ways. Either the killers of Hajdari want to silence the potential witnesses against them or they do not. DHS is talking out of both sides of its mouth.
Perhaps, however, the DHS should be congratulated on its sense of humor, if, indeed, its argument is not mere confusion. It argues that former counsel presented the immigration judge with “numerous inconsistencies, both internally in testimony and with the documentary evidence…” and when the BIA reviewed the record created by that attorney ”
both in appeal a
nd in a motion to reconsider” it found no reason to reverse the immigration judge. From this proof (undeniable proof in light of the evidence that has been presented to the Board by present counsel) of previous counsel’s incompetence, the DHS argues the BIA should conclude the representation by previous counsel was not ineffective. It is, of course, precisely because prior counsel presented a case riddled with “inconsistencies” when he could have presented a plainly meritorious case, if he had bothered to investigate what his client had been through and what evidence was easily available to him (indeed, he did not even know his client had with him his cousins’ death certificates!) that his performance was so far beneath that which the Constitution and laws of the United States require that it denied Mr. Neza a reasonable opportunity to present his evidence. Prior counsel argues, and the DHS bays along with him and his partner, that since the record prior counsel created was so defective the BIA could not find in that same record a meritorious asylum claim, the BIA now should ignore the evidence that it now knows prior counsel could have put into the record, and which almost certainly would have resulted in a grant of asylum to Mr. Neza.
Perhaps the DHS has its own reasons for wanting to prevent disclosure of the facts that might surface if Mr. Neza were afforded a reasonable opportunity to present his case in the immigration court. It is clear that neither the BIA in its previous denial of Mr. Neza’s Lozada motion nor the DHS in its present pleadings, doubts that Mr. Neza very likely will be murdered if returned to Albania, and that the murder will be because of his political opinion.
The BIA should not deny Mr. Neza the right to a fair hearing before sending him to his death. It is hard to imagine a more flagrant blot on the honor of the United States than the efforts of the DHS to deny to Mr. Neza the reasonable opportunity, which the laws of the United States guarantee him, to present his case to an immigration judge. The BIA should look at all of the evidence before it, and reject the mere bureaucratic spite for which the DHS argues. If it does, it will reopen Mr. Neza’s asylum application.
Respectfully submitted,
JOHN WHEAT GIBSON, P.C.
MoPress 