Bajraktari v. Attorney General , 270 F. App'x 172 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-19-2008
Bajraktari v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4202
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4202
ZYRAFETE BAJRAKTARI,
a/k/a Hanife Kabashi,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
__________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75-929-181
__________
Submitted Under Third Circuit LAR 34.1(a)
on January 3, 2008
Before: FUENTES, JORDAN, Circuit Judges, and DUBOIS,* District Judge.
(Filed: March 19, 2008)
OPINION
*
Honorable Jan E. DuBois, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
1
FUENTES, Circuit Judge.
For the second time, Petitioner Zyrafete Bajraktari, an ethnic Albanian, petitions
this Court for review of the BIA’s denial of her motion to reopen proceedings based on
ineffective assistance of counsel. For a period spanning seven years, Bajraktari has
sought to reopen her proceedings, retaining four separate attorneys and filing numerous
motions to address the merits of her application. For the reasons that follow, we conclude
that Bajraktari has exercised due diligence in the pursuit of her claim and we will
therefore grant her petition for review of her motion to reopen.
I.
Because we write for the parties, we recite only the facts essential to our decision.1
After filing an application on February 3, 1999, for political asylum and witholding of
removal, Bajraktari appeared on July 7, 1999, at a removal hearing with her lawyer,
Martin Vulaj. However, because a translator was not available, the hearing was
rescheduled for July 26, 1999. Vulaj, however, failed to inform Bajraktari of the new
date which resulted in the Immigration Judge (“IJ”) ordering her removal in absentia.
Immediately after learning of the in absentia order of removal, Bajraktari
contacted Vulaj who told her he would file a timely motion to reopen for an additional
$300. Despite Bajraktari’s payment, Vulaj failed to file the motion to reopen within the
1
For a more complete factual and procedural history, we defer to this Court’s
opinion in Bajraktari v. Gonzales, 160 Fed. App’x 234 (3d Cir. 2005) (not precedential).
2
180 day period required by 8 U.S.C. § 1229a. When she learned that Vulaj failed to file
the motion to reopen, Bajraktari retained Kieran Both, her second counsel. On October
12, 2000, nine months after her motion to reopen was due, Both informed the immigration
court that he had been retained to represent Bajraktari and that she had been ordered
removed in absentia on July 26, 1999.
On June 21, 2001, Both filed a motion to reopen solely based on changed country
conditions (the “first motion to reopen”). Notably, Both failed to include a claim of
ineffective counsel against Vulaj for his failure to file a timely motion to reopen or
provide an explanation for Bajraktari’s failure to appear at the hearing on July 26, 1999.
The IJ denied the first motion to reopen as untimely and the BIA affirmed that decision
on February 20, 2002.
Shortly thereafter, Bajraktari retained her third attorney, Michael DiRaimondo,
who, on October 15, 2002, filed a second motion to reopen based on ineffective
representation by both prior attorneys (the “second motion to reopen”). This motion was
administratively delayed for four months by the Executive Office for Immigration
Review. Once it was reinstated before the IJ, Bajraktari filed a supplemental motion to
reopen on April 22, 2003, renewing her ineffective representation claims (the
“supplemental motion to reopen”). This motion was ultimately denied by the IJ because it
exceeded the allowable motions to reopen and because it was untimely. The BIA
affirmed that ruling. Bajraktari timely appealed the BIA’s denial of her appeal to this
3
Court.
II.
In December 2005, we granted Bajraktari’s initial petition for review and
remanded to the BIA to determine whether Bajraktari’s counsels’s conduct should toll the
time limits for filing a motion to reopen in absentia orders of removal and, if necessary,
whether Bajraktari exercised due diligence in pursuing her claim. See Bajraktari, 160
Fed. App’x at 235. On remand, the BIA vacated its order denying her motion to reopen
and reinstated her appeal. The BIA conceded the ineffectiveness of her prior counsel and,
although the BIA equitably tolled the untimeliness of Bajraktari’s second motion to
reopen, it dismissed her appeal because she had not exercised due diligence in pursuing
her claims.2
In concluding that Bajraktari had not exercised due diligence, the BIA cited
several specific examples: 1) the first motion to reopen filed by Both was not based on
ineffective assistance of counsel despite Bajraktari’s knowledge of the in absentia order
2
In concluding that the untimeliness of Bajraktari’s second motion to reopen
should be equitably tolled, the BIA did not determine how long the 180 day time limit
should have been tolled. However, we note that the BIA’s dismissal of Bajraktari’s
appeal of the IJ’s denial of her motion to reopen because of her failure to exercise due
diligence presumes that the tolling period was not significant to the BIA’s determination
that Bajraktari did not exercise due diligence during the overall period of delay. See
Mahmood v. Gonzales, 427 F.3d 248, 251 (3d Cir. 2005) (holding deadline for filing
motion to reopen in absentia order of removal on the basis of ineffective assistance of
counsel is subject to equitable tolling where an alien exercises due diligence in pursuing
her claim).
4
and Vulaj’s failure to file a motion to reopen; 2) the first motion to reopen by Both was
not filed within a reasonable time after learning of Vulaj’s failure to file the motion; 3)
she failed to inform Both of relevant facts, including her in absentia order and the
ineffective counsel claim, prior to filing the first motion to reopen; and 4) the second
motion to reopen filed by DiRaimondo, based on ineffective assistance of counsel, was
filed almost two years after the first motion was filed.
III.
Because the denial of a motion to reopen is a final order, we have jurisdiction
under 8 U.S.C. § 1252(a). See Sevioan v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
We review the denial of a motion to reopen for abuse of discretion, Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), and we will reverse the BIA’s decision only
if it is “arbitrary, irrational, or contrary to law,” Sevoian, 290 F.3d at 174 (internal
quotation marks omitted). However, we review findings of fact for substantial evidence
and, therefore, will not set them aside unless a reasonable fact-finder would be compelled
to find to the contrary. See Gabuniya v. Atty.Gen., 463 F.3d 316, 321 (3d Cir. 2006).
On remand, the BIA concluded that Bajraktari failed to inform her counsel of
relevant facts, including her in absentia order and the ineffective assistance of counsel
claim, prior to the filing of the first motion to reopen on June 21, 2001. However,
contrary to the BIA’s conclusion, the record shows that on October 12, 2000, her second
attorney, Both, submitted a letter to the court stating that Bajraktari was ordered removed
5
in absentia on July 26, 1999. Furthermore, the affidavit Both prepared for Bajraktari to
sign and file in support of the first motion to reopen stated that “[t]he reasons that these
applications [for relief from removal] were denied is that I did not appear for the
hearing.” AR 310. Thus, Bajraktari must have told Both of the in absentia order before
he filed her first motion to reopen.
The BIA also found that Bajraktari’s first motion to reopen was not filed within a
reasonable time after she learned of her first attorney’s failure to file the motion.
Although that appears to be correct, the failure to file within a reasonable time was the
fault of Bajraktari’s attorney, Both. Our review of the record demonstrates, however,
that, promptly after learning of her first attorney’s deficiency, Bajraktari retained her
second attorney, Both. AR 436. We believe Bajraktari’s conduct immediately following
Vulaj’s ineffective representation was sufficiently diligent, as was the petitioner’s
conduct in Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007). In Ghahremani,
the Ninth Circuit found that the petitioner had acted with due diligence and was steadfast
in pursuit of relief where he continued investigation and hired two other attorneys, in
unbroken efforts to retain competent counsel and file his motion to reopen.
We note as well that Both delayed filing the first motion to reopen for nearly eight
months after he represented to the court that he had been retained. Moreover, even
though Bajraktari informed Both of her failure to appear at the July 1999 hearing and of
the in absentia removal order, Both did not include an ineffective assistance of counsel
6
claim in his motion to reopen nor did he inform the court that her first attorney, Vulaj,
failed to give her notice of her rescheduled immigration hearing. We believe these facts
demonstrate the ineffectiveness of Both’s representation, which the BIA incorrectly
attributed to Bajraktari as a lack of due diligence. See Ghahremani v. Gonzales, 498 F.3d
at 1000 (holding that interim lawyers’s failure to inform petitioner of his first lawyer’s
deficiencies does not undermine petitioner’s exercise of due diligence).
Finally, in finding that Bajraktari did not exercise due diligence, the BIA focuses
its decision solely on the April 22, 2003, supplemental motion to reopen, inaccurately
referring to this as her second motion to reopen. The BIA concluded that Bajraktari did
not file any motion to reopen based on ineffective assistance of counsel until April 22,
2003, almost two years after the first motion to reopen was filed.3 This was not the case,
however, as the second motion to reopen was filed six months earlier, in October 2002,
through her third lawyer, DiRaimondo, and was based on the ineffectiveness of
Bajraktari’s prior counsel, Both and Vulaj. This second motion was filed eight months
after the BIA affirmed the denial of her first motion. These circumstances support our
view that Bajraktari was diligent in seeking to reopen her case on the basis of ineffective
assistance of counsel. Moreover, as we stated previously, this second motion to reopen
3
The BIA states that “it was not until [Bajraktari], represented by yet another
attorney, Michael DiRaimondo, filed her second motion to reopen, on April 22, 2003, that
she sought to rescind the in absentia order.” SPA 17. The BIA further emphasized that
“the respondent did not file a motion to reopen claiming ineffective assistance of counsel
until April 22, 2003, almost 2 years after the filing by Mr. Both of the first motion to
reopen.” SPA 18.
7
was delayed by the agency for four months because of administrative reasons and not by
any reason attributable to Bajraktari.33
IV.
We conclude that Bajraktari has pursued her claims with diligence at all levels,
obtaining four lawyers to represent her over seven years to file multiple motions to reopen
and to appeal the denials of her motions, all of which was made necessary by the
obviously ineffective assistance of counsel that plagued her at the start. Accordingly, we
believe that the BIA’s conclusions regarding Bajraktari’s exercise of due diligence are not
supported by substantial evidence.
33
In a letter dated November 12, 2002, the Executive Office for Immigration
Review determined that it did not have jurisdiction over the case and forwarded it to the
Board of Immigration Appeals. The Executive Office for Immigration Review
acknowledged its error and delay stating, “since this was an error with the above court by
accepting the motion, we are forwarding it to the appropriate office.” (A.R. 87.) On
January 22, 2003, the Board of Immigration Appeals found that jurisdiction was vested
with the Immigration Court, rather than with the Board of Immigration Appeals, denied
the motion to reopen and returned the record to the Immigration Court.
8