Bajraktari v. Atty Gen USA , 160 F. App'x 234 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-23-2005
Bajraktari v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2864
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2864
ZYRAFETE BAJRAKTARI
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General of the United States,
Respondent
*Substituted pursuant to Rule 43c, F.R.A.P.
On Appeal from an Order entered by
The Board of Immigration Appeals
No. A75-929-181
Argued June 7, 2005
Before: AMBRO, STAPLETON and ALARCÓN**, Circuit Judges
(Opinion filed: December 23, 2005)
** Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
Meer M. M. Rahman, Esquire
Charles Christophe, Esquire (Argued)
Christophe & Associates, P.C.
67 Wall Street
Suite 210
New York, NY 10005
Counsel for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Richard M. Evans
Assistant Director
David E. Dauenheimer, Esquire
Janice K. Redfern, Esquire
Hillel R. Smith, Esquire (Argued)
United States Department of Justice
Office of Immigration, Litigation
Ben Franklin Station
P.O. Box 878, Civil Division
Washington, D.C. 20044
Counsel for Respondent
OPINION
AMBRO, Circuit Judge
Zyrafete Bajraktari petitions for review of the decision by the Board of
Immigration Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of her
motion to reopen as untimely filed. As Bajraktari’s allegations of ineffective assistance
of counsel provide a basis for equitably tolling the relevant filing deadline, we remand to
the BIA on the issue of whether she exercised the requisite degree of diligence.
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I. Facts and Procedural History
Bajraktari, an ethnic Albanian Muslim, was born in Decan, Kosovo in 1977. The
crux of her asylum case is that she was the victim of ethnic and political persecution
perpetrated by the Serbian police while she lived in Kosovo. In particular, she alleges
that because the government prohibited her from attending public school, she attended
classes in private homes, which the Serbian government raided. Further, Bajraktari
alleges that her father, an active political protester, was often beaten and detained by
Serbian police as a result of his political activities. Because of her father’s anti-
government activities, the Serbian police conducted searches of Bajraktari’s home on
more than one occasion, and during these searches the police interrogated and beat her
and other members of her family. In July 1998, Bajraktari’s father was killed opposing
the Serbian soldiers’ attempt to enter and burn his village. Bajraktari fled Kosovo and
arrived in New York in December 1998.
In February 1999, Bajraktari filed an asylum application. Four months later, she
appeared at a removal hearing with her counsel, Martin Vulaj, but the hearing was
adjourned because no official Albanian translator was present. Though the Court gave
notice to Vulaj that the hearing would be rescheduled for July 26, 1999, Bajraktari alleges
that Vulaj failed to inform her of the new date, causing her to miss the hearing. She was
ordered removed in absentia.
When Bajraktari learned of the order of removal she discussed the order with
Vulaj, and he informed her that he would immediately file a motion to reopen on her
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behalf.1 Bajraktari paid Vulaj $300 to file the motion. Though Vulaj accepted the
payment, he did not file the motion. Bajraktari then obtained new counsel, Kieran Both,
who in June 2001 filed a motion to reopen based on changed country conditions. The
motion did not address Bajraktari’s failure to appear for the July 1999 hearing or assert
that Vulaj had been ineffective. Instead, the motion argued that reopening was necessary
in light of changed country conditions, and the IJ concluded that timely filing would not
be a prerequisite for reopening on that ground if new evidence existed that could not have
been presented at the prior hearing. Finding, however, that there was no new evidence
(indeed, Bajraktari had not shown that country conditions had changed to her detriment)
and the motion to reopen was thus untimely, the IJ denied the motion.
The BIA affirmed the IJ’s decision in February 2002, agreeing that the motion to
reopen was out of time (as it was due by January 24, 2000 but was not filed until nearly
17 months later). The BIA also concluded that Bajraktari had not shown materially
changed circumstances.
In October 2002, Bajraktari, through her third lawyer, Michael DiRaimondo, filed
a second motion to reopen based on the ineffectiveness of both prior counsel, alleging (1)
that Vulaj was ineffective in failing to inform Bajraktari of the date of the hearing and
1
The details of this interaction—such as when it occurred—are not specified in
Bajraktari’s affidavit. Bajraktari’s letter to the bar disciplinary committee also fails to
specify the date on which Vulaj agreed to file the motion to reopen. Because the letter
implies that Vulaj agreed to file the motion in a timely fashion but failed to do so, we
infer that they discussed the in absentia order of removal prior to January 24, 2000.
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then misleading her into believing that he would remedy the adverse order resulting from
her failure to appear, and (2) that Both was ineffective for failing to assert Vulaj’s
ineffectiveness in his motion to reopen. The IJ denied the motion, inter alia, on the
ground that it was untimely. The BIA affirmed the IJ’s decision on June 4, 2004.
Bajraktari timely petitioned for review.
II. Jurisdiction and Standard of Review
We have jurisdiction over Bajraktari’s petition for review of the BIA’s final order
of removal pursuant to 8 U.S.C. § 1252(d)(1). Because the BIA affirmed the IJ’s
decision without opinion, it is the IJ’s opinion and reasoning that we review. Dia v.
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). Our standard for reviewing the IJ’s
denial of the motion to reopen is abuse of discretion. Lu v. Ashcroft, 259 F.3d 127, 130
(3d Cir. 2001) (determining that we review denial of a motion to reopen based on an
ineffective assistance of counsel claim for abuse of discretion). Thus, a denial of a
motion to reopen will be overturned only if it is “arbitrary, irrational or contrary to law.”
Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).
III. Discussion
Under 8 U.S.C. § 1229a(b)(5)(C)(i), an alien has 180 days from the date of an in
absentia order of removal to file a motion to reopen. Here, Bajraktari was ordered
removed in July 1999, and consequently her motion to reopen was due for filing in
January 2000. But, as noted, it was filed almost a year and a half later.
We have held that the deadline for filing a motion to reopen in absentia orders of
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removal is subject to equitable tolling. Mahmood v. Gonzalez, 427 F.3d 248, 251 (3d Cir.
2005). We also suggested that ineffective assistance of counsel was a possible basis for
this equitable tolling. Id. Bajraktari contends that Vulaj’s and Both’s conduct was
sufficient to justify tolling the 180-day deadline.
Equitable tolling is unavailable, however, where an alien fails to exercise due
diligence in pursuing his or her claim. Id. at 252. Unless due diligence (or its absence) is
clear as a matter of law, we generally remand for a first-instance determination of whether
the alien has exercised due diligence. Id. at 252-53. The BIA did not consider (1)
whether the time to file a motion to reopen was tolled because Vulaj was ineffective in
promising to file a timely motion to reopen, but not filing it, or (2) whether Bajraktari did
not adequately inform Both of Vulaj’s alleged misrepresentation.
In this context, we grant the petition for review and remand to the BIA to
determine whether counsel’s conduct should toll the time limits and, if needed, whether
Bajraktari exercised due diligence in pursuing her claim.
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