Gezim Doda v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1433
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GEZIM DODA
a/k/a GJOKE SHQUTAJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A074-955-543)
Immigration Judge: Honorable Annie Garcy
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 9, 2011
Before: SCIRICA, SMITH and JORDAN, Circuit Judges.
(Filed: November 22, 2011)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Gjoke Shqutaj1 petitions for review of the November 22, 2010 order of the Board
of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings.
For the reasons that follow, we will deny the petition.
I. Background
Shqutaj is a native and citizen of Albania. On June 6, 1996, he attempted to enter
the United States through Newark, New Jersey with an illegally obtained passport. As a
result, he was charged with inadmissibility under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) for entering the United States with an invalid visa or entry
document, and 8 U.S.C. § 1182(a)(6)(C)(i) for presenting a fraudulent passport. Despite
those charges, Shqutaj was paroled into the United States so that he could apply for
asylum.
In October 1996, Shqutaj filed his application for asylum. In it, he claimed that
his father had been “arrested, convicted and sentenced to 15 years in jail because he
assisted people who had escaped from Albania and protested against the communist
government in Albania.” (A.R. at 515.) In addition, Shqutaj claimed that he feared
persecution by the communist regime, if he were returned to Albania. Finally, he alleged
that he also feared he would be persecuted by the Socialist Party of Albania because he
had been a member of Albania’s rival Democratic Party.
1
“Gezim Doda” is the name appearing first on the caption in this case, but
petitioner’s application for asylum and withholding of removal, and his brief on appeal,
bear the name “Gjoke Shqutaj”. Therefore, in this Opinion, we refer to him as “Shqutaj.”
2
On June 25, 1997, an Immigration Judge (“IJ”) denied Shqutaj’s application for
asylum and ordered his removal. Shqutaj appealed that decision to the BIA, and on
March 6, 2002, the BIA affirmed the decision and order.
On November 2, 2010, Shqutaj filed an untimely motion to reopen his removal
proceedings. He argued, that the BIA should consider his untimely motion because, as a
Catholic, he was in danger due to growing animosity between “Muslims, Catholics, and
Orthodox religions” in Albania. (J.A. at 16.) He also argued that the tardiness of his
motion should be excused due to the ineffective assistance rendered by his counsel.
Finally, Shqutaj asserted that he feared persecution because he was the target of a
revenge-killing resulting from a “blood feud” between his father-in-law’s family and a
neighbor.
The BIA decided that Shqutaj’s motion to reopen was untimely because he failed
to file it within the 90-day filing period prescribed by the Immigration and Nationality
Act, 8 U.S.C. § 1229a(c)(7)(C)(i). The BIA also determined that none of the exceptions
to the 90-day filing requirement applied to Shqutaj’s motion. First, it noted that although
the religious climate in Albania changed for Catholics since 1997, the religious climate
“did not change in … a way that would support [Shqutaj’s] claim for … asylum,
withholding of removal, or protection under the Convention Against Torture,” because a
2007 U.S. Department of State Report (the “2007 Report”) demonstrated that Roman
Catholics in Albania “enjoyed a greater degree of official recognition … and social status
than some other religious groups.” (J.A. at 4) (internal quotation marks omitted).
Second, the BIA rejected Shqutaj’s ineffective assistance of counsel claim because it
3
found that he could not prove that he suffered prejudice as a result of his attorney’s
allegedly deficient performance.
Turning to Shqutaj’s claim of persecution as a result of a blood feud, the BIA
rejected it, saying the “evidence indicate[d] that the [Albanian] government investigates
and punishes blood feuds and their related crimes and that many blood feud actions have
been criminalized by the Albanian Government.” (Id. at 4.) The BIA also found that
blood feuds are “essentially personal disputes that are criminal in nature” and that
Shqutaj had failed to present evidence that “the Albanian government is unable or
unwilling to protect its populace from such threats.” (Id. at 5.)
Shqutaj timely petitioned for review of the BIA’s decision.
II. Discussion2
The parties do not dispute that Shqutaj’s motion to reopen is untimely. 3
Therefore, unless Shqutaj can demonstrate that a change in country conditions justifies
reopening his removal proceedings, or that we should toll the filing deadline due to
2
The BIA had jurisdiction under 8 C.F.R. § 1003.2. We have jurisdiction
pursuant to 8 U.S.C. § 1252.
In immigration cases, we review the denial of a motion to reopen for abuse of
discretion, regardless of the underlying basis for the alien’s request for relief. INS v.
Doherty, 502 U.S. 314, 323-24 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d
Cir. 2003). We give the BIA’s decision broad deference and generally do not disturb it
unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241,
251 (3d Cir. 2006) (citation and quotation marks omitted).
3
An alien may file a motion to reopen “within 90 days of the date of entry of a
final administrative order of removal.” See 8 U.S.C. § 1229a(c)(7)(C)(i).
4
ineffective assistance of counsel, we must conclude that the BIA correctly denied
Shqutaj’s motion as untimely.4
A. Changed Country Conditions
The 90-day time limit for filing a motion to reopen does not apply if the motion
relates to an application for asylum based on “changed country conditions arising in the
country of nationality or the country to which removal has been ordered, if such evidence
is material and was not available and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The
alien bears the burden of proving eligibility for the requested relief. 8 C.F.R.
§ 1003.2(c)(1).
The only evidence Shqutaj offered in support of his claim of changed country
conditions is his unsupported assertion that “[s]ince 2006, there have been escalating
tensions between Muslims, Catholics and Orthodox religions,” (J.A. at 16), and that
Catholics “are considered … a different people [in Albania] … and … are discriminated
[against] in every public and government place,” (id. at 36). However, the evidence of
record belies Shqutaj’s assertion that conditions in Albania deteriorated for Catholics
between 1996 (the date of his original application for asylum and withholding of
removal) and 2007. In fact, the only evidence in the record that describes the religious
4
We have recognized the following exceptions to the 90-day filing requirement:
(1) motions to reopen for the purpose of applying “for asylum or withholding of
deportation based on changed country conditions,” 8 C.F.R. § 1003.2(c)(3)(ii); (2)
equitable tolling due to ineffective assistance of counsel, Mahmood v. Gonzales, 427 F.3d
248, 251-52 (3d Cir. 2005); and (3) requests for the BIA to open removal proceedings
sua sponte, 8 C.F.R. § 1003.2(a). Shqutaj invokes only the first two of those three
exceptions.
5
conditions in Albania, the 2007 Report, supports the government’s assertion that
conditions improved for Catholics in Albania during that time. In particular, the 2007
Report states that “[t]he [Albanian] constitution and law provide for freedom of religion
and the government generally respect[s] this right.” (Id. at 65.) The 2007 Report further
states that “[t]he predominant religious communities, Sunni Muslim, Bektashi Muslim,
Orthodox, and Roman Catholic, enjoy[] a greater degree of official recognition (for
example, national holidays) and social status than some other religious groups.”5 (Id. at
65.) Because that evidence demonstrates that Catholics enjoyed a greater degree of
freedom and respect between 1996 and 2007, we agree with the BIA’s conclusion that the
religious climate for Catholics in Albania “did not change in such a way that would
support the applicant’s claim for asylum, withholding of removal, and protection under
the Convention Against Torture based solely on [Shqutaj’s] asserted fear.” (Id. at 12.)
Therefore, Shqutaj failed to satisfy his burden of demonstrating a material change in
country conditions.
B. Ineffective Assistance of Counsel
An ineffective assistance of counsel claim can serve as a basis for equitably tolling
the filing deadline for a motion to reopen a removal proceeding. Mahmood, 427 F.3d at
251-52 (internal citations and quotation marks omitted). In order to succeed on an
ineffective assistance of counsel claim, however, a petitioner must first satisfy the
5
Although the 2007 Report does not describe religious conditions in Albania
between 2007 and 2010 (the year Shqutaj filed the motion to reopen), Shqutaj put forth
no other evidence supporting his assertion that religious conditions deteriorated for
Catholics during that period.
6
procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).6
If the petitioner satisfies the Lozada requirements,7 the petitioner must demonstrate that,
“as a result of counsel’s actions … the proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case.” Borges v. Gonzales, 402 F.3d
398, 408 (3d Cir. 2005) (internal citations and internal quotation marks omitted). In other
words, we must ask “(1) whether competent counsel would have acted otherwise, and, if
yes, (2) whether the alien was prejudiced by counsel’s poor performance.” Fadiga, 488
F.3d at 157 (citations and internal quotation marks omitted).
6
In Matter of Lozada, the BIA established the procedural requirements for filing a
motion to reopen removal proceedings based on a claim of ineffective assistance of
counsel. 19 I. & N. Dec. at 639. However, in Matter of Compean (“Compean I”), the
Attorney General overruled Lozada, and introduced a new substantive and procedural
framework for examining ineffective-assistance of counsel claims in immigration
proceedings. Matter of Compean, 24 I. & N. Dec. 710 (A.G. Jan. 7, 2009). Thereafter,
the Attorney General vacated “[Compean I] in its entirety,” and instructed “the [BIA] and
Immigration Judges [to] apply the pre-Compean standards to all pending and future
motions to reopen based upon ineffective assistance of counsel, regardless of when such
motions were filed.” Matter of Compean (“Compean II”), 25 I. & N. Dec. 1, 3 (A.G.
June 3, 2009). Therefore, the procedural requirements in Lozada govern Shqutaj’s
petition.
7
Those requirements include:
(1) support[ing] the claim with an affidavit attesting to the
relevant facts; (2) inform[ing] former counsel of the
allegations and provid[ing] counsel with the opportunity to
respond (this response should be submitted with the alien’s
pleading asserting ineffective assistance); and (3) stat[ing]
whether a complaint has been filed with appropriate
disciplinary authorities regarding [the allegedly deficient]
representation, and if not, why not.
Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks omitted)
(citing Matter of Lozada, 19 I. & N. Dec. at 639).
7
Here, even assuming arguendo that Shqutaj can satisfy the Lozada procedural
requirements, his ineffective-assistance claim fails because he cannot demonstrate that he
suffered prejudice as a result of his attorney’s performance. It is undisputed that the BIA
ordered Shqutaj’s removal on March 6, 2002. However, for reasons unknown, Shqutaj
did not retain counsel until 2003 – more than nine months after the statutory filing period
had lapsed. (See J.A. at 33 (“I had hired Sokol Braho in New York to file a Motion to
Reopen in 2003 after all efforts to resolve the blood feud had failed.”).) Because
Shqutaj’s motion to reopen was already untimely when he retained counsel, he cannot
argue that he was prejudiced by his attorney’s failure to file the motion in a timely
manner. Accordingly, we agree with the BIA’s conclusion that Shqutaj failed to
demonstrate “the required prejudice stemming from his former attorney’s alleged
behavior.”8 (Id. at 13.)
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
8
Even assuming arguendo that Shqutaj’s motion to reopen was timely, the BIA
did not err in denying Shqutaj’s motion to reopen because Shqutaj failed to demonstrate
that he is eligible for asylum. In his application for asylum, Shqutaj states that he fears
persecution as a result of a dispute between the Daci and Tinaj families. However,
because retaliation in response to a personal dispute does not constitute persecution on
the basis of a protected ground, and the dispute between the Daci and Tinaj families is a
personal dispute, Shqutaj’s alleged fear of persecution does not support his application
for asylum. See Amanfi v. Aschroft, 328 F.3d 719, 727 (3d Cir. 2003) (noting that
“retaliation in response to a personal dispute” is not “a ground for asylum [or]
withholding of removal”).
8