Rranci v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-22-2008
Rranci v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 06-3327
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3327
NAZMI RRANCI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of
The Board of Immigration Appeals
Immigration Judge: Honorable Henry S. Dogin
(No. A96-077-564)
Argued December 11, 2007
Before: SLOVITER and AMBRO, Circuit Judges
RESTANI,* Chief Judge
*
Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.
(Opinion filed August 22, 2008)
Rex Chen, Esquire (Argued)
Catholic Charities of the Archdiocese of Newark
976 Broad Street
Newark, NJ 07102
Counsel for Petitioner
Gregory G. Katsas
Acting Assistant Attorney General, Civil Division
David V. Bernal
Assistant Director, Office of Immigration Litigation
Richard M. Evans, Esquire
Andrew C. MacLachlan, Esquire (Argued)
Susan K. Houser, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Counsel for Respondent
Baher A. Azmy, Esquire (Argued)
Lori Nessel, Esquire
Meetali Jain, Esquire
Maura Caroselli, Esquire
2
Seton Hall Law School
Center for Social Justice
International Human Rights/Rule of Law Project
833 McCarter Highway
Newark, NJ 07102
Counsel for Amicus-Appellants
OPINION OF THE COURT
AMBRO, Circuit Judge
Nazmi Rranci, a native of Albania, seeks relief from an
Immigration Judge’s order that he be removed from the United
States. He petitions our Court for review of a decision by the
Board of Immigration Appeals dismissing his appeal and
declining to reopen his case. We decide whether the BIA erred
in holding that his case cannot be reopened on the ground of
ineffective assistance of counsel. A sub-issue is whether an
alien who serves as a Government witness in the United States
can be removed to his home country if the person he made a
statement or testified against has threatened his life. This raises
an issue not addressed before by us — the extent a United
Nations Convention recently ratified by Congress affects
removal in this case. We grant the petition and remand to the
3
BIA for further proceedings.
I. Facts and Procedural History
Rranci paid a smuggling operation to bring him from
Albania into the United States. He arrived in Texas in January
2003 after the smugglers had taken him through Italy,
Venezuela, Colombia, Ecuador, El Salvador, Guatemala, and
Mexico. Shortly after he crossed the border to the United States,
the former Immigration and Naturalization Service (now
Immigration and Customs Enforcement) detained him. The INS
initially served him with a notice to appear in June 2003, after
he had begun living and working in New Jersey.
After receiving the notice, Rranci became a material
witness in a criminal case against Rustem Muho, a smuggler of
illegal immigrants and an alleged chieftain in Albanian
organized crime. Rranci had hired Muho to smuggle him into
the United States. The U.S. Department of Justice (DOJ)
confirmed in writing that Rranci “cooperated with the
Government in that he gave a statement regarding the smuggling
activities” of Muho and made himself available to testify. Muho
eventually pled guilty.1 The DOJ stated that “Mr. Rranci and
1
Muho was a significant enough smuggler to merit a DOJ
press release on the event of his guilty plea. See Press Release,
DOJ, Albanian Man Pleads Guilty in Alien Smuggling
C o n s p i r a c y ( M a y 1 4 , 2 0 0 3 ), a t
4
other material witnesses’ cooperation was an important factor in
convincing [Muho] to plead guilty.” Letter from Anne Marie
Farrar, Trial Attorney, Domestic Security Section, U.S. Dep’t of
Justice, to Natale F. Carabello, Jr., Esq. (April 4, 2005) (App. at
44) (hereinafter “Farrar Letter”). In order that Rranci could
remain in the United States legally while he cooperated with the
DOJ, he was paroled through April 2004. In June 2004,
however, once Muho’s case was no longer pending and Rranci’s
parole had expired, the INS served Rranci with a second notice
to appear. It stated that he was subject to removal under
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United
States without having been admitted or paroled.
In March 2005, Rranci applied for asylum, withholding
of removal, and protection under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85
(“CAT”). As support for his claim of asylum, he stated that he
“fear[s] . . . being killed for the reason that I have helped [the
United States] against Mr. Muho” and an associate, “who are
allied to the Albanian government.” Rranci also alleged that
Muho’s henchmen had been asking Rranci’s family and friends
in Albania about his whereabouts. In a sworn affidavit dated
October 31, 2005, Rranci also explained that his understanding
http://www.usdoj.gov/opa/pr/2003/May/03_crm_293.htm (last
visited July 28, 2008).
5
from the DOJ was that Muho would be removed to Albania
“after about two months” (i.e., two months after his conviction).
Thus, Rranci believed that Muho would have returned to
Albania by the time he (Rranci) applied for asylum. (In
addition, by July 2005, a friend of Rranci’s brother told him of
spotting Muho in Albania.)
In his October 2005 affidavit, Rranci told of hearsay
evidence of the threat against his life. He stated that Muho’s
brother had communicated a lethal threat against him to a
friend’s father. Muho’s organization might have communicated
the threat this way, he conjectured, because his friend’s family
lived closer and would have been familiar to Muho’s crime
syndicate. Rranci stated that “Mr. Muho’s brother said that I put
Rustem [Muho] in jail and that whenever I returned to Albania,
Rustem and his friends would kill me.” 2
2
Nothing in the record explains how Muho learned that
Rranci had testified against him. Amici curiae the Asian
American Legal Defense and Education Fund, Frosina
Information Network, The International Women’s Human
Rights Law Clinic of the City University of New York School
of Law, the Muslim Bar Association of New York, and the
South Asian Bar Association of New Jersey, infer from the
record that the Government itself informed Muho, perhaps
during plea negotiations, that Rranci had made a statement and
would testify against him. Amici Curiae Br. at 5. But the record
contains no direct evidence that the Government did so.
6
Rranci alleged in his March 2005 asylum application that
the DOJ promised that, if he cooperated with its prosecution of
Muho, “a removal proceeding would be waived.” In his
October 2005 affidavit, Rranci described his understanding of
the DOJ’s statements slightly differently, stating that the DOJ
pledged he “would be protected” and “would not be deported to
Albania.” 3 He asserted that he would not have cooperated with
the Government but for these promises. For its part, the DOJ
stated that “Mr. Rranci was not promised that he would be given
permanent admission in exchange for his cooperation.” Farrar
Letter, supra.
A hearing before an IJ to decide Rranci’s asylum
application was scheduled for August 2005. He had hired
attorney Natale F. Carabello, Jr. to represent him. During their
preparation for the hearing, Carabello told Rranci “that the
Court would ask questions for about three hours,” suggesting
that they had anticipated a full hearing regarding Rranci’s
asylum application. Nonetheless, before Rranci entered the
courtroom, Carabello went in without him and returned with a
3
Rranci’s two descriptions of the DOJ’s alleged promise
stand in tension legally (though perhaps not in a layman’s
understanding) because declining to remove him to Albania in
particular does not foreclose the possibility of removing him to
another foreign country. Thus, stating that a removal
proceeding will be “waived” is not equivalent to stating he
“would not be deported to Albania.”
7
recommendation that Rranci simply accept voluntary departure.
In his affadavit, Rranci stated: “The lawyer also told me that I
could be arrested if I did not say I wanted to leave. I was afraid.
I was forced into taking an agreement to leave the United States
because that is what the lawyer told me to do and I was afraid.”
The Government disputes this characterization, stating that the
IJ asked Rranci what he wanted to do and received the response
“I want to leave voluntarily.” The IJ granted voluntary
departure, giving Rranci the opportunity to leave the United
States on his own until December 2005. In the alternative, the
IJ ordered him removed.
Rather than leaving voluntarily, Rranci obtained new
(also his current) counsel and moved to reopen his case in
November 2005. He argued that his prior counsel (Carabello)
had provided ineffective assistance, which can provide a ground
for reopening a case. See, e.g., Zheng v. Gonzales, 422 F.3d 98,
106 (3d Cir. 2005). He also argued that the “state-created
danger doctrine,” which we discuss below, prohibited his
removal to Albania. The IJ denied the motion to reopen. Rranci
appealed to the BIA, which dismissed his appeal in June 2006.
Rranci now petitions our Court for review of the BIA’s decision.
II. Jurisdiction and Standard of Review
We have jurisdiction over final orders of removal under
§ 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1). Here, the IJ
granted Rranci the option of voluntary departure until December
8
2005 but, in the alternative, ordered him removed to Albania.
“An order of removal becomes final upon, inter alia, ‘a
determination by the [BIA] affirming such order.’ 8 U.S.C.
§ 1101(a)(47)(B)(i).” Yusupov v. Att’y Gen., 518 F.3d 185, 195
(3d Cir. 2008). The BIA’s dismissal of Rranci’s appeal from the
IJ’s denial of his motion to reopen amounted to an affirmance of
the order of removal. See id. (“The Supreme Court has specified
that administrative orders are final when they mark the
‘consum mation’ of the agency’s decision-m a king
process . . . .”).
Because the BIA issued an opinion, rather than a
summary affirmance, we review the BIA’s (rather than the IJ’s)
decision. Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005).
We limit our review to the administrative record, 8 U.S.C.
§ 1252(b)(4)(A), and take the BIA’s “findings of fact [as]
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary,” id. § 1252(b)(4)(B). We
review the BIA’s denial of Rranci’s motion to reopen under the
abuse of discretion standard. In other words, the BIA’s “denial
of a motion to reopen may only be reversed if it is ‘arbitrary,
irrational, or contrary to law.’ ” Filja v. Gonzales, 447 F.3d 241,
251 (3d Cir. 2006) (quoting Sevoian v. Ashcroft, 290 F.3d 166,
174 (3d Cir. 2002)). Finally, we review the BIA’s legal
conclusions de novo, including both pure questions of law and
applications of law to undisputed facts. Francois v. Gonzales,
448 F.3d 645, 648 (3d Cir. 2006).
9
III. The State-Created Danger Exception
Generally, due process of law does not create an
affirmative obligation for the Government to protect private
individuals from other private individuals. But the state-created
danger exception to that rule imposes on the Government “a
constitutional duty to protect a person against injuries inflicted
by a third-party when [the Government] affirmatively places the
person in a position of danger the person would not otherwise
have faced.” Kamara v. Att’y Gen., 420 F.3d 202, 216 (3d Cir.
2005). Rranci argues that the Government, by seeking his
cooperation in Muho’s prosecution and then ordering his
removal to Albania (where Muho, according to the record,
resides), has affirmatively placed him in danger. This argument
fails as a matter of law. We have stated unequivocally that “the
state-created danger exception has no place in our immigration
jurisprudence.” Id. at 217.4
4
Rranci tries to distinguish Kamara as having different facts,
but the section of Kamara devoted to the state-created danger
exception does not rely on the particular facts of that case. He
also argues that Kamara concerned a “[c]onstitutional challenge
to immigration statutes” rather than an individual constitutional
claim. Pet’r’s Br. at 17. But the text of Kamara belies this
attempt at a distinction: “Kamara argues that in addition to
misapplying the proper legal standard to his CAT petition the
BIA, in issuing its final order of removal, violated his right to
substantive due process under the state-created danger
exception.” 420 F.3d at 216 (emphasis added).
10
Furthermore, Kamara’s applicability is beside the point.
Procedurally speaking, Rranci’s claim that the state-created
danger exception should apply to him was not an appropriate
ground for a motion to reopen. A pertinent BIA regulation
states:
A motion to reopen proceedings
shall state the new facts that will be
proven at a hearing to be held if the
motion is granted and shall be
supported by affidavits or other
evidentiary material. . . . A motion
to reopen proceedings shall not be
granted unless it appears to the
Board that evidence sought to be
offered is material and was not
available and could not have been
discovered or presented at the
former hearing . . . .
8 C.F.R. § 1003.2(c)(1). Rranci’s March 2005 asylum
application set out his concerns about the danger waiting for him
in Albania as a result of his cooperation with the Government’s
prosecution of the smuggler Muho. His subsequent October
2005 affidavit accompanying his motion to reopen added some
detail, but made no allegation of new facts that arose between
the August 2005 hearing before the IJ and the November
motion. Thus, Rranci’s state-created danger claim did not
11
satisfy the BIA regulation’s requirement of “new facts” for a
motion to reopen. To reopen his case, Rranci must rely on the
allegation that his prior counsel was ineffective.
IV. Ineffective Assistance of Counsel
Rranci claims that his prior counsel, Carabello, provided
him with ineffective assistance at his initial hearing before the
IJ in August 2005. In a related argument, Rranci alleges that his
acceptance of voluntary departure was not in fact voluntary,
because Carabello had frightened him into accepting that form
of relief. Our Court has recognized that ineffective assistance
of counsel in removal proceedings violates the Fifth
Amendment’s guarantee of due process of law. Fadiga v. Att’y
Gen., 488 F.3d 142, 155 (3d Cir. 2007). We have outlined two
sets of requirements, one procedural and one substantive, that
claims of ineffective assistance must meet.
A. Application of Lozada’s Procedural Requirements to
Rranci’s Claim
Our Court has essentially adopted the procedural
requirements that the BIA developed for ineffective-assistance-
of-counsel claims. Id. To proceed with such a claim, the
allegedly aggrieved person must (1) provide an affidavit
attesting to the relevant facts, (2) inform former counsel of the
allegations and allow him an opportunity to respond, and (3) “if
it is asserted that prior counsel’s handling of the case involved
12
a violation of ethical or legal responsibilities, the motion should
reflect whether a complaint has been filed with appropriate
disciplinary authorities regarding such representation, and if not,
why not.” In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
Rranci’s motion to reopen easily met the first prong by
including the sworn affidavit dated October 31, 2005. Though
most of the affidavit focuses on the merits of his asylum claim,
the final two paragraphs explain the circumstances of Rranci’s
acceptance of voluntary departure. The BIA did not mention the
first prong, suggesting that it found this requirement to be met
as well.
Most of the dispute between the parties focuses on
Lozada’s second prong. In an attempt to satisfy this
requirement, Rranci submitted with his motion to reopen a
second affidavit, this time from his current counsel, Rex Chen.
In this statement, Chen attested to a conversation he had with
Carabello regarding the latter’s representation of Rranci at the
IJ hearing. Chen informed Carabello that Rranci “was
considering a motion to reopen the case to pursue relief under
the state created danger doctrine.” Chen explained the nature of
that doctrine and also relayed Rranci’s allegation of intimidation
just before entering his hearing before the IJ. In response,
according to Chen’s affidavit, Carabello stated that he felt it was
in Rranci’s best interest to accept voluntary departure, denied
that he told Rranci he would be imprisoned or detained if Rranci
did not depart voluntarily, and conceded that he was unaware of
13
the state-created danger doctrine.
The BIA affirmed the IJ’s ruling that Rranci failed to
satisfy the second prong of Lozada, holding that Chen’s
affidavit failed to establish that Carabello was aware of any
allegations of ineffective assistance. It also stated that no
evidence was presented regarding Carabello’s opportunity to
respond to any such allegations.
We disagree. We have previously warned of the
“inherent dangers . . . in applying a strict, formulaic
interpretation of Lozada.” Xu Yong Lu v. Ashcroft, 259 F.3d
127, 133 (3d Cir. 2001). Lozada “serve[s] as a threshold and a
screening mechanism to help the agency assess the substantive
number of ineffective assistance claims that it receives.”
Fadiga, 488 F.3d at 155 (internal quotation marks omitted). But
it does not specify in detail what constitutes an opportunity for
prior counsel to respond. “[B]efore allegations of ineffective
assistance of former counsel are presented to the [BIA], former
counsel must be informed of the allegations and allowed the
opportunity to respond. Any subsequent response from counsel,
or report of counsel’s failure or refusal to respond, should be
submitted with the motion.” 19 I. & N. Dec. at 639.
Chen’s affidavit satisfied this requirement. It provides
evidence that Chen informed Carabello that Rranci was
considering a motion to reopen the case and described both
arguments pursued before the IJ, the BIA, and our Court. We
14
have no evidence that Chen used the specific words “ineffective
assistance of counsel.” But he informed Carabello of Rranci’s
allegation of intimidation, which gave Carabello notice of the
substance of Rranci’s support for a motion to reopen. The
affidavit reflects that Rranci’s prior and current counsel
discussed their conflicting views of the merits of Rranci’s
asylum application and the relevant legal theories. In this
context, Carabello received adequate notice that Rranci was
contemplating an ineffective-assistance-of-counsel claim.
We also conclude that Rranci provided Carabello with an
opportunity to respond and submitted his response with the
motion. Specifically, Chen’s sworn affidavit contains his
firsthand account of Carabello’s response—that he did not know
of the state-created danger doctrine and continued to believe that
accepting voluntary departure was the appropriate legal strategy.
We acknowledge the BIA’s concern that Carabello did not have
an opportunity to respond, since he did not provide his own
written rebuttal. We agree that a separate response would be
ideal. Yet because Chen’s affidavit made the BIA aware of the
substance of Carabello’s response, and our Court has cautioned
against a “strict . . . interpretation of Lozada,” Xu Yong Lu, 259
F.3d at 133, we hold that Rranci satisfied Lozada’s second
prong in this instance.
Rranci concedes that he failed to file a bar complaint.
Thus, to satisfy Lozada’s third prong, he must explain why he
did not pursue disciplinary action against Carabello. 19 I. & N.
15
Dec. at 639. In his motion to reopen, Rranci cited both his lack
of English-language skills and time pressure. This excuse is off
point, since the filing of a disciplinary action would be an
appropriate task for his new counsel, rather than the petitioner
himself. Thus, Rranci’s difficulty with English and legal
standards is irrelevant to the third prong of Lozada. Rranci has
not provided adequate evidence of his diligence in investigating
whether disciplinary action would have been appropriate. See
Zheng, 422 F.3d at 106. Such diligence, and providing evidence
of it to satisfy Lozada’s third prong, would have been
preferable.
Despite the lack of a compelling excuse for not pursuing
disciplinary action against his prior counsel, we still consider
Rranci to have satisfied the necessary procedural requirements.
Where a petitioner succeeds on the first two prongs of Lozada
but does not file a disciplinary complaint or provide an
explanation, we have held that the third prong does not
necessarily sink a petitioner’s ineffective-assistance-of-counsel
claim. As we explained in Fadiga, as long as the policy
concerns on which the third prong is based have been served,
the complaint requirement may be excused. See 488 F.3d at
156–57. In that case, we held that Lozada did not bar a
petitioner’s claim even though the petitioner “neither filed a
disciplinary complaint nor explained his failure to do so.” Id. at
156 (internal quotation marks omitted).
In our case, we are satisfied that the policies underlying
16
Lozada’s third prong have been met. These policies include: (1)
identifying, policing, and correcting misconduct in the
immigration bar; (2) deterring meritless claims of ineffective
assistance of counsel; (3) highlighting the expected standards of
lawyering for immigration attorneys; (4) reducing the need for
an evidentiary hearing; and (5) avoiding collusion between
counsel and alien clients. See id. We consider these policies in
turn.
Rranci submitted enough in his motion to reopen to help
his prior counsel avoid the same mistakes in the future.
Although an argument based on the state-created danger
exception ultimately would have proven fruitless (because we
decided Kamara three weeks after Rranci’s initial IJ hearing),
Carabello failed to pursue any legal argument based on Rranci
having served as a witness against a prominent, dangerous
criminal. For instance, he failed to mention a relevant treaty, the
Convention Against Transnational Organized Crime. See infra
Part V.5 Awareness of legal doctrines that could provide
5
Congress had held a public hearing on the treaty in June
2004. See Law Enforcement Treaties: Hearing on Treaty Docs.
107-18, 108-6, 108-11, and 108-16 Before the Sen. Comm. on
Foreign Relations, 108th Cong. (2004). The Senate Foreign
Relations Committee approved the treaty in July 2005, just
before Rranci’s hearing before the IJ in August 2005. See Last
Week, Cong. Q. Today, July 29, 2005. A Westlaw search in the
Journals and Law Reviews database conducted before Rranci’s
17
protection for a Government witness like Rranci might have
altered Carabello’s strategic decision to recommend voluntary
departure. Carabello’s phone conversation with Chen made him
aware of the shortcomings of his representation by informing
him that legal doctrines arguably protecting witnesses do exist.
If presented with a similar case in the future, Carabello now has
information that will help him to do better. In this context,
filing a formal disciplinary proceeding against Carabello is not
necessary to advance the policy goal of identifying, policing,
and correcting misconduct.
The other policies behind Lozada’s third prong have been
served here as well. Because of the possibly significant errors
Carabello made, see infra Section IV.B, we cannot conclude in
this particular case that Rranci’s claim of ineffective assistance
is meritless. The phone conversation between Carabello and
Chen has highlighted the need for immigration lawyers to
perform research tailored to each client and to keep up with new
developments in this fast-changing area of law. That same
conversation provides evidence of a key source of the alleged
IJ hearing would have uncovered dozens of articles that discuss
the treaty and the relevant protocol dealing with human
smuggling. See, e.g., Bruce Zagaris, Revisiting Novel
Approaches to Combatting the Financing of Crime: A Brave
New World Revisited, 50 Vill. L. Rev. 509, 536–37 (2005)
(discussing the treaty and mentioning its provision for the
protection of witnesses).
18
ineffectiveness—Carabello’s lack of awareness of legal
doctrines that potentially protect witnesses. That evidence
reduces the need for an evidentiary hearing about Carabello’s
representation of Rranci. Finally, there is no suggestion of
collusion between Carabello and Rranci.
In sum, although he fell short of the ideal, Rranci has
sufficiently addressed the procedural requirements of Lozada to
proceed with his ineffective-assistance-of-counsel claim.
B. Application of the Substantive Error-and-Prejudice Test
to Rranci’s Claim
Ineffective assistance of counsel can constitute a denial
of due process if an alien is prevented from reasonably
presenting his case. Xu Yong Lu, 259 F.3d at 131 (citing Lozada
v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988)). Our Court uses a
two-part test to assess error and prejudice, asking “(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).
1. Errors by Prior Counsel
Carabello made at least three possible errors that
competent counsel may not have made. First, as mentioned
above, he had not done enough research to know of the
19
impending treaty, let alone whether it would apply to Rranci’s
claim. The record shows that Carabello did inquire at the DOJ
to learn about Rranci’s cooperation with Muho’s prosecutors.
Arguably, this should have alerted Carabello to the uniqueness
of Rranci’s claim and to the need for further research. But it
appears that Carabello did not identify any legal theory that
might have helped Rranci obtain relief.
Second—even putting aside the allegation of
intimidation, which is disputed—Carabello abruptly switched
strategies and allegedly left his client confused. Having
prepared for a three-hour hearing, Rranci then heard a last-
minute recommendation to accept voluntary departure. If
Carabello had done the legwork, he would have been prepared.
While we do not speculate as to the reasons for Carabello’s
sudden shift, we nonetheless do not understand why he would
recommend on these facts that Rranci forgo a hearing.
Third, Carabello recommended voluntary departure,
which is ordinarily understood as a privilege, but may not have
benefitted his client in this particular case. The facts that
Carabello had collected, the seriousness of the alleged threats
Rranci received, the corroboration by the DOJ of Rranci’s
cooperation, and the overall consistency and plausibility of
Rranci’s story, suggest that Carabello should have avoided
voluntary departure unless it was clear that a country other than
Albania would accept him. On this record, we do not know
whether Rranci could have departed to a country other than
20
Albania. Nonetheless, given the peril Rranci appears to face, it
is possible that Carabello erred by recommending voluntary
departure without knowing if there was any other country in
which he was eligible to stay.
In this unique context, we think the possibility of error is
strong enough that we remand to the BIA for consideration of
whether Rranci’s prior counsel erred. Fadiga, 488 F.3d at 161
(noting that our Court has the power to remand a case to the BIA
to determine whether an attorney’s representation was
substantively deficient where the procedural requirements have
been met).
2. Prejudice
For an alien to demonstrate that he suffered prejudice due
to his counsel’s unprofessional errors, he must show that there
was a “reasonable likelihood that the result would have been
different if the error[s] . . . had not occurred.” Id. at 159
(quoting United States v. Charleswell, 456 F.3d 347, 362 (3d
Cir. 2006)) (alteration in original). An alien “need not show that
counsel’s deficient performance more likely than not altered the
outcome in the case[;] rather, he must show only a probability
sufficient to undermine confidence in the outcome. This
standard is not a stringent one.” Id. at 161 (citations and internal
quotation marks omitted) (analogizing to the standard for
prejudice in the context of Sixth Amendment ineffective-
assistance-of-counsel claims).
21
By accepting voluntary departure at his prior counsel’s
recommendation, Rranci gave up his claims for asylum,
withholding of removal, and CAT protection. Granted, he
seems to face an uphill battle on his asylum claim because he
has not alleged that he will be persecuted based on “race,
religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C.A. § 1101(a)(42)(A) (defining
“refugee” status, i.e., eligibility for asylum). No appellate court
to our knowledge has deemed “smuggling informants” to be a
social group that can serve as a protected ground for an asylum
claim. If Rranci’s asylum claim is not likely to succeed, then a
fortiori his claim for withholding of removal is not likely to
succeed either. See Janusiak v. INS, 947 F.2d 46, 47–48 (3d
Cir. 1991) (explaining that withholding of removal requires
demonstrating a higher probability of persecution than asylum).
We do not, of course, pass judgment on the merits of Rranci’s
asylum and withholding of removal claims. But for the purpose
of evaluating prejudice as part of his ineffective-assistance-of-
counsel claim, we focus on CAT protection.
The CAT states that “[n]o State Party shall expel, return
(‘refouler’) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.” CAT art. 3(1). For the purposes of
the CAT, torture is defined as pain or suffering “inflicted by or
at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official public
capacity.” CAT art. 1(1); see 8 C.F.R. § 1208.18(a)(7)
22
(“Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness
of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.”).
Our Court has explained what constitutes “consent or
acquiescence of a public official” for the purposes of protection
under the CAT. In Silva-Rengifo v. Attorney General, 473 F.3d
58, 64–65 (3d. Cir. 2007), we concluded that the BIA adopted
an incorrect legal standard requiring official “consent” or
“actual acquiescence,” id. at 70. “For purposes of CAT claims,
acquiescence to torture requires only that government officials
remain willfully blind to torturous conduct and breach their legal
responsibility to prevent it.” Id.; see also Zheng v. Ashcroft, 332
F.3d 1186, 1197 (9th Cir. 2003) (requiring only awareness and
willful blindness of government officials for CAT protection).
The key question in our case is whether a “reasonable
likelihood” exists that Rranci could prevail on his CAT claim if
his case were reopened. Fadiga, 488 F.3d at 159. The BIA held
that, in light of Kamara and the inapplicability of the state-
created danger exception, Rranci had experienced no prejudice.
For the reasons discussed in the remainder of this section and in
Part V below, we remand to the BIA for another hearing to
decide whether Rranci was prejudiced by prior counsel’s
performance.
To begin, Rranci has not been challenged on credibility
23
grounds. He has provided a consistent account of the threat to
his life he faces from Muho and his Albanian crime syndicate.
He couples this with an allegation of acquiescence by the
Albanian government (an allegation that appeared in his March
2005 application for asylum, withholding of removal, and CAT
protection). In his appendix, Rranci included two documents
detailing human trafficking in Albania. A BBC News article
notes that many of the traffickers in Albania work in collusion
with the “underpaid police force, who turn a blind eye to the
highly lucrative trade.” Claire Doole, Albania Blamed for
Human Trafficking, BBC News, April 17, 2001, at
http://news.bbc.co.uk/1/hi/world/europe/1281816.stm (last
visited July 29, 2008). A State Department country report on
Albanian human rights practices also mentions the problem of
police corruption and involvement in trafficking. It goes on to
state that victims of trafficking are unwilling to testify “due to
fear of retribution from traffickers and distrust of police.” U.S.
Dep’t of State, Albania: Country Report on Human Rights
P r a c tic e s – 2 0 0 2 a t 1 4 (2 0 0 3 ), a v a ila b le a t
http://www.state.gov/g/drl/rls/hrrpt/2002/18349.htm (last visited
July 29, 2008). “Lawyers and judges may also be manipulated
and bribed, permitting traffickers to buy their way out of
punishment if arrested.” Id.
Based on Rranci’s affidavit, the evidence of his
cooperation, and the circumstantial evidence of the threat he
faces, we cannot say that it is implausible that Rranci will be
tortured or killed if he returns to Albania. There may be a
24
“reasonable likelihood” that the pervasive bribery and
involvement of various Albanian-government officials would
constitute a “willful blindness” to the torturous conduct of a
human smuggler like Muho. Thus, we remand to the BIA for
a finding whether Rranci was prejudiced by Carabello’s
recommendation to forgo a full IJ hearing and accept voluntary
departure to Albania.
* * * * *
In sum, we hold that Rranci satisfied the procedural
requirements of Lozada. Because the BIA erred in applying the
law to the undisputed facts of this case, it abused its discretion
in dismissing Rranci’s appeal and affirming the IJ’s denial of his
motion to reopen. We remand for the BIA to consider the
substantive aspects of error and prejudice with regard to
Rranci’s claim of ineffective assistance of counsel in light of
this opinion. See Fadiga, 488 F.3d at 161. If he can
demonstrate error and prejudice, then his motion to reopen
should be granted and he should receive a new hearing before an
IJ on the merits of his claims for relief.
V. Convention Against Transnational Organized Crime
In closing, we note that Rranci’s case presents an issue of
first impression for our Court. He and amici curiae raise the
issue whether the Government’s obligations under protocols of
the United Nations Convention Against Transnational
25
Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“the
Convention”), prohibit his removal. The Convention states:
“Each State Party shall take appropriate measures within its
means to provide effective protection from potential retaliation
or intimidation for witnesses in criminal proceedings who give
testimony concerning offences covered by this Convention . . . .”
Id. at art. 24(1) (emphasis added). Annex III to the treaty, the
Protocol Against the Smuggling of Migrants by Land, Sea, and
Air, is a supplement that is meant to be interpreted together with
Annex I (i.e., the main treaty). Id. at Annex III, art. 1(1).
Offenses under Annex III are viewed as offenses under the
Convention as whole, id. at Annex III, art. 1(3), and those
offenses include the smuggling of migrants, id. at Annex III, art.
6(1)(a). Thus, it appears that the witness protections of Annex
I would apply to witnesses such as Rranci who provided
statements or testified to crimes defined under Annex III of the
Convention, here Muho’s smuggling crimes.
We did not have the opportunity to address the
Convention in Kamara, which (as noted above) was decided
before the Convention took effect.6 Amici argue that the state-
6
Congress did not ratify the Convention until October 7,
2005, and it did not take effect in the United States until
December 3, 2005. The Government states in its brief that the
treaty went into force generally on September 29, 2003. But the
State Department points out that “[a] State must become a party
to [the Convention] in order to become a party to its Protocols.”
26
created danger exception would be an appropriate vehicle to
incorporate the Convention’s provisions into United States law.
We need not reach that issue of treaty interpretation here. But
we note that the concept of protecting witnesses under the
Convention is distinct from the state-created danger exception.
The latter relates to constitutional due process of law, whereas
protection under the Convention would come from the United
States’ treaty obligations. We are skeptical that the state-created
danger exception, which extends well beyond the immigration
context, can appropriately accommodate the specific obligations
of the Convention.
The Government argues that the Convention introduced
no new protections for aliens. A Senate report and a letter from
President Bush have stated that current United States law
already complies with the Convention, obviating the need for
any implementing legislation. Gov’t’s Br. at 15 (citing S. Exec.
Doc. No. 109-4, §§ 1(c), 2(c), & 3(c), October 7, 2005;
President of the United States, Letter of Transmittal, Treaty
Doc. 108-16, February 23, 2004). Accepting that interpretation
as accurate, the absence of implementing legislation does not
imply that the BIA has no need to set out how existing law
See Press Release, U.S. Dept. of State, “Fact Sheet: United
Nations Convention against Transnational Organized Crime
( T O C ) ” ( N o v . 3 , 2 0 0 5 ) , a t
http://www.state.gov/r/pa/prs/ps/2005/56006.htm (last visited
July 25, 2008).
27
complies with the Convention. On the contrary, it may provide
beneficial clarity to alien-informant cases for the BIA to explain
its understanding of the United States’ obligations toward aliens
who provide information in criminal cases.
The Government also argues that Rranci failed to exhaust
administratively any claim he might have had under the
Convention because he did not raise it in his motion to reopen
before the IJ and the BIA. This argument misses the mark. On
a motion to reopen, a petitioner claiming ineffective assistance
of counsel need not argue the merits of his claims—those will
receive a hearing if the petitioner’s motion to reopen is
successful. Cf. Fadiga, 488 F.3d at 163. It cannot be held
against Rranci that he failed to raise the issue of a treaty before
the IJ and the BIA in that particular procedural context, when
the task at hand was to reopen his case.
On remand, the BIA should determine how current U.S.
law reflects compliance with the specific provisions of the
Convention that are relevant to Rranci’s claim. We leave
interpretation of this issue to the BIA for consideration in the
first instance. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999). But the Convention calls into question whether the
Government may put Rranci into harm’s way in Albania after
using his cooperation to obtain a guilty plea from a significant
criminal. The BIA’s consideration of the Convention will factor
into the degree to which Rranci may have been prejudiced by his
prior counsel’s decision to recommend forgoing a hearing and
28
accepting voluntary departure.
* * * * *
For these reasons, we grant Rranci’s petition for review
and remand to the BIA for a new hearing on the substantive
components (error and prejudice) of his ineffective-assistance-
of-counsel claim consistent with this opinion.
29