Patel v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-11-2008
Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3893
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3893
____________
RITABAHEN GHANSHYAMBHAI PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A97 436 268)
Immigration Judge: Annie S. Garcy
____________
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2008
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
(Filed: February 11, 2008 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Ritabahen Ghanshyambhai Patel seeks review of an order of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of her
request for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). In addition, she claims that she is entitled to relief because of
ineffective assistance of counsel. For the reasons that follow, we will deny the petition.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Patel, a native and citizen of India, entered the United States on June 6, 2003,
using her passport that contained a “fake green card stamp.” The fake stamp was placed
in her passport by a person referred to as an “agent” or “smuggler.” Her stated motivation
for coming to the United States was to be with Atul Kumar Patel (“Atul”), who is now her
husband (they were not married at the time of her arrival). After Patel’s arrival, the
authorities acted on a tip from the couple to arrest and prosecute the smuggler who
brought her to this country. Subsequent to the smuggler’s arrest, an unidentified
individual began making threatening phone calls to Atul, and at least one of the calls
threatened harm to Patel. On December 18, 2003, the Department of Homeland Security
notified Patel that removal proceedings had been instituted against her.
At her immigration hearing, Patel asserted that the threats made indirectly to her
supported a finding that she qualified for asylum, protection under the CAT, and/or
withholding of removal. With her attorney, Jonathan Saint-Preux, Patel argued that the
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threats against her and her husband supported a finding that she would be subject to harm
at the hands of the alleged smuggling ring if she returned to India. Therefore, she argued
that she had demonstrated a well-founded fear of future persecution.
The IJ denied asylum, finding that Patel failed to satisfy the requirements. The IJ
stated that Patel failed to present evidence that the threat she faced was from an individual
whom the government of India was unable or unwilling to control. Additionally, the IJ
found that Patel presented no evidence that she was being targeted on account of her race,
religion, nationality, membership in a particular social group, or political opinion.
The IJ also denied her application for withholding of removal and protection under
the CAT. Withholding of removal was denied because the IJ concluded that the evidence
of phone calls from an unknown source did not establish a well-founded fear of future
persecution. The IJ denied her CAT claims because Patel did not identify any fear of
harm that would come at the hands of public officials in India or from someone acting
with the consent or acquiescence of public officials.
Patel, assisted by new counsel, appealed the IJ’s decision to the BIA. In addition
to arguing that she merited the relief she sought, she made a claim of ineffective
assistance of counsel. She stated that her husband, Atul, was prepared to testify before
the IJ, but her attorney failed to call him as a witness for reasons she does not understand.
The hearing transcript reveals that the IJ expressed doubt as to the benefit of such
testimony, and Patel’s counsel agreed that Atul would not provide any new information.
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Patel argues that Atul’s testimony would have been helpful. In her appeal, Patel attached
an affidavit from Atul, which states that Atul and Patel informed the U.S. government
about the smugglers, and that Atul believes the smugglers have been deported and are in
Gujarat, where the Indian government is unable and unwilling to control them.
The BIA affirmed the decision of the IJ on all grounds, rejecting Patel’s claim of
ineffective assistance of counsel because she failed to satisfy the procedural requirements
laid out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)). The BIA further
concluded that even if she had fulfilled Lozada’s procedural requirements, there was no
evidence that she suffered prejudice as a result of her attorney’s conduct. Patel filed a
timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). In cases where the BIA both
adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, the
Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215,
222 (3d Cir. 2004). We review the IJ’s decision and the BIA’s affirmance under the
deferential “substantial evidence” standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.
2003) (en banc). A finding is not supported by substantial evidence only where “no
reasonable fact finder could make that finding on the administrative record.” Id.
In order to qualify for asylum, an individual must prove that she has “a well-
founded fear of persecution on account of race, religion, nationality, membership in a
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particular social group, or political opinion.” 8 U.S.C § 1101(a)(42)(A). However, “any
claim of persecution, violence or other harm . . . does not constitute persecution unless
such acts are ‘committed by the government or forces the government is either ‘unable or
unwilling’ to control.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (quoting
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003)). In order to qualify for
withholding of removal, the applicant must demonstrate a “clear probability” that
persecution will result if the applicant is removed to a particular country. I.N.S. v. Stevic,
467 U.S. 407, 413 (1984).
In order to qualify for relief under the CAT, the applicant must present evidence
establishing “that it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). An act is not considered
torture if it is not “inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.” Id. § 208.18.
The parties dispute whether Patel effectively made a motion to reopen and remand
before the BIA when she asserted an ineffectiveness of counsel claim. We agree with the
government that because Patel stated new facts supported by affidavits when raising that
claim, she effectively made a motion to reopen. See 8 C.F.R § 1003.2(c)(1). Patel’s
motion to reopen was made while she had an appeal pending and therefore “may be
deemed a motion to remand.” 8 C.F.R. § 1003.2(c)(4). “[W]e review the [BIA’s] denial
of a motion to reopen [and remand] for abuse of discretion.” Fadiga v. Att’y Gen., 488
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F.3d 142, 153 (3d Cir. 2007) (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004)).
“However, we review de novo the Board’s determination of an underlying procedural due
process claim,” such as a claim of ineffective assistance of counsel. Id.
In order to argue ineffectiveness of counsel in support of a motion to reopen, an
alien must fulfill certain procedural requirements:
The alien must (1) support the claim with an affidavit attesting to the
relevant facts; (2) inform former counsel of the allegations and provide
counsel with the opportunity to respond (this response should be submitted
with the alien’s pleading asserting ineffective assistance); and (3) state
“whether a complaint has been filed with appropriate disciplinary
authorities regarding [the allegedly deficient] representation.”
Fadiga, 488 F.3d at 155 (quoting Lozada, 19 I. & N. Dec. at 639). If a complaint is not
filed, as required under the third Lozada requirement, then the applicant must provide a
reasonable explanation why not. Xu Yong Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir.
2001).
In addition to meeting the procedural requirements, an alien claiming ineffective
assistance of counsel must meet two substantive requirements, showing “(1) that [she]
was prevented from reasonably presenting [her] case and (2) that substantial prejudice
resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks and citation omitted).
III.
Patel argues that the IJ’s decision and the BIA’s affirmance were not based on
substantial evidence. She states that she presented sufficient evidence that she was a
member of a social group: those who experience human smuggling and testify against the
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smugglers. Patel claims that the BIA took a “strained and unsubstantiated” view of the
evidence.
Regardless of whether Patel is a member of a social group, she has failed to
present any evidence that would show that the government of India is either unable or
unwilling to control the smugglers who would allegedly persecute her, or would consent
or acquiesce in such persecution. Because of the lack of credible evidence in the record,
we are unable to conclude that it was unreasonable for the IJ and BIA to find that she
failed to satisfy the asylum requirements.
Having failed to satisfy the asylum requirements, Patel has necessarily failed to
satisfy the more stringent requirements for withholding of removal. Chen, 376 F.3d at
223. In addition, it was not unreasonable for the IJ and BIA to conclude that Patel is not
eligible for CAT protection because she failed to establish that it is more likely than not
that she would be tortured at the instigation of, or with the consent or acquiescence of, the
Indian government.
With respect to her ineffective assistance claim, Patel argues that the BIA erred in
its conclusion that the procedural Lozada requirements had not been fulfilled. She argues
that her explanation for not filing a complaint was reasonable and therefore that
requirement should have been excused. The reasons Patel supplied are lack of language
proficiency and legal knowledge, distance from counsel, lack of adequate time, and
potential sanctions that may result from the filing of frivolous disciplinary complaints.
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Patel’s new counsel, retained after the IJ’s decision, was responsible for helping
her to negotiate the immigration appeals system. The challenges she faced are the
challenges that are faced by many in immigration proceedings. If we were to accept the
explanation that there is not enough time to draft an appellate brief and complaint
concurrently, Lozada’s third procedural requirement would be rendered a nullity, because
every immigrant claiming ineffective assistance of counsel is faced with time constraints
and a presumed unfamiliarity with the U.S. legal system. After a de novo review of the
record, we agree with the BIA that Patel’s ineffective assistance claim is procedurally
barred.
Even if the Lozada procedural requirements were met, the record lacks sufficient
evidence that Patel suffered prejudice as a result of her former counsel’s performance.
Patel asserts that her husband’s testimony in court was necessary, yet his affidavit fails to
link the threats to a public official or an individual the government is unwilling or unable
to control. Therefore, even with the aid of her husband’s testimony, Patel would have
failed to satisfy the requirements for asylum, withholding of removal, and relief under the
CAT. Finally, Patel claims her attorney erred by not arguing that the state-created danger
doctrine is applicable in her case. This argument also fails, as the state-created danger
doctrine is not applicable to immigration proceedings. Kamara v. Att’y Gen., 420 F.3d
202 (3d Cir. 2005).
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IV.
For the foregoing reasons, we will deny Patel’s petition for review.
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