Hase v. Holder

09-0780-ag
Hase v. Holder
BIA
Harbeck, IJ
A097 851 767
A097 851 768
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C IT AT IO N T O A SU M M A R Y O R D E R F IL ED O N O R A F TE R
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D T H IS C O U RT ’S L O CAL
R U L E 32.1.1. W H E N C IT IN G A SU M M AR Y O R D ER IN A D O CU M E N T FILE D W ITH T H IS C O U RT , A PAR TY M U ST CITE E ITH ER TH E
F ED ER AL A P PE N D IX O R A N E L E C TR O N IC D A T AB A SE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A PAR TY C ITIN G A SU M M AR Y
O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of February, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11 _________________________________________
12
13 ALMA HASE, EDISON CERI,
14 Petitioners,
15
16 v. 09-0780-ag
17 NAC
18
19 ERIC H. HOLDER JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONERS: Michael J. Lacey, Grosse Pointe
25 Farms, Michigan.
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Jennifer J. Keeney, Senior
28 Litigation Counselor, Nairi M.
29 Simonian, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Petitioners Alma Hase and Edison Ceri, natives and
10 citizens of Albania, seek review of the January 30, 2009
11 order of the BIA affirming the June 21, 2007 decision of
12 Immigration Judge (“IJ”) Dorothy Harbeck denying Hase’s
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”), and their
15 motion to reopen. 1 In re Hase, Nos. A097 851 767/768
16 (B.I.A. Jan. 30, 2009), aff’g Nos. A097 851 767/768 (Immig.
17 Ct. N.Y. City June 21, 2007). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 of the case.
1
Although both Petitioners are named in the instant
petition for review, only Alma Hase filed an application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). Petitioner Edison Ceri
was listed as a derivative applicant. Accordingly, all
references to the Petitioner herein are to Alma Hase,
because only the events pertaining to her experiences in
Albania are relevant to the instant petition.
2
1 I. Motion to Remand
2 Because Petitioner filed her motion to reopen during
3 the pendency of her appeal to the BIA, the BIA properly
4 construed the motion as seeking remand to the IJ. See
5 8 C.F.R. § 1003.2(c)(4) (providing that a motion to reopen
6 filed when an appeal is pending before the BIA may be deemed
7 a motion to remand and consolidated by the BIA and
8 considered along with the appeal). The BIA’s denial of a
9 motion to remand is held to the same substantive standard as
10 a motion to reopen or reconsider, i.e., abuse of discretion.
11 Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 151 (2d Cir.
12 2005).
13 In her motion, Petitioner argued that remand was
14 warranted because she received ineffective assistance of
15 counsel. To demonstrate ineffective assistance, an alien
16 must show that competent counsel would have acted otherwise,
17 and that the alien was prejudiced by her counsel’s
18 performance. Romano v. INS, 399 F.3d 109, 112 (2d Cir.
19 2005). Here, the BIA determined that Petitioner’s motion
20 failed because her attorney’s refusal to call a particular
21 expert witness was a tactical decision, and thus
22 insufficient to satisfy this standard. Petitioner argues
3
1 that this determination was an abuse of discretion because
2 the expert’s testimony was crucial to the success of her
3 application for relief. This argument is unavailing.
4 It is well established in the criminal-law context that
5 an attorney’s “failure to call a witness for tactical
6 reasons of trial strategy does not satisfy the standard for
7 ineffective assistance of counsel.” United States v. Ejman,
8 313 F.3d 741, 743 (2d Cir. 2002). We have also held that an
9 attorney’s “strategic decisions” in asylum proceedings
10 cannot be the basis for an ineffective assistance claim.
11 See Changxu Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir.
12 2008). Here, we find no error in the agency’s conclusion
13 that counsel’s tactical decision not to call the witness did
14 not constitute ineffective assistance of counsel. See id.;
15 Ejman, 313 F.3d at 743. Accordingly, the BIA did not abuse
16 its discretion by denying Petitioner’s motion.
17
18 II. Asylum, Withholding of Removal, and CAT Relief
19 When the BIA does not expressly “adopt” the IJ’s
20 decision, but its decision closely tracks the IJ’s
21 reasoning, we may consider both the IJ’s and the BIA’s
22 opinions for the sake of completeness. Zaman v. Mukasey,
4
1 514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s
2 factual findings under the substantial evidence standard.
3 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of
4 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). Questions
5 of law and the application of law to undisputed fact are
6 reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d
7 99, 110 (2d Cir. 2008).
8 Petitioner does not argue that the agency erred in
9 finding that she did not establish past persecution. 2 Where
10 an applicant fails to demonstrate past persecution, she can
11 establish her eligibility for asylum by showing that she
12 subjectively fears persecution and that this fear is
13 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
2Even if Petitioner’s brief could be construed as
disputing the agency’s past persecution finding, we find no
error in its decision. While tragic, the death of
Petitioner’s sister is not persecution Petitioner suffered.
Compare Melger de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d
Cir. 1999)(rejecting petitioner’s argument that the murder
of her uncle could form the basis for a finding of past
persecution where there was no evidence of political
motivation for the killing), with Jorge-Tzoc v. Gonzales,
435 F.3d 146, 150 (2d Cir. 2006)(finding that, unlike in
Melger de Torres, the massacre of petitioner’s family
members by the military when he was a child, in conjunction
with substantial evidence the military was targeting ethnic
Mayans, could constitute past persecution); see also Shi
Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d
Cir. 2007)(“[A]pplicants can become candidates for asylum
relief only based on persecution that they themselves have
suffered or must suffer.”).
5
1 169, 178 (2d Cir. 2004). The agency determined that
2 Petitioner failed to demonstrate an objectively reasonable
3 fear of persecution because: (1) recent U.S. State
4 Department reports indicated that, since the Democratic
5 Party gained control of the Albanian government in 2005,
6 supporters of that party no longer faced persecution; and
7 (2) regardless, Petitioner was not politically active, and
8 the evidence she submitted failed to show that her sister’s
9 murder was precipitated by her parents’ support for the
10 Democratic Party.
11 Petitioner does not challenge these findings. Rather,
12 she argues that the agency erred by failing to consider her
13 particular social group claim. However, as the BIA found,
14 because Petitioner did not indicate that she was seeking
15 relief on a social group theory in her asylum application,
16 the IJ did not err by declining to address such a claim.
17 Regardless, the agency reasonably found that Petitioner
18 failed to link her sister’s murder to her parents’ political
19 activities. See Melgar de Torres, 191 F.3d at 313.
20 Petitioner also argues that the agency erred by relying
21 on State Department reports, which she asserts are
22 unreliable. We disagree. Although we have previously
6
1 warned the agency “not to place excessive reliance on the
2 published reports of the Department of State,” such reports
3 are nonetheless “the result of estimable expertise and
4 earnestness of purpose,” Tian-Yong Chen v. INS, 359 F.3d
5 121, 130 (2d Cir. 2004), and are clearly probative, Tu Lin
6 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). In this
7 case, the agency found that the State Department reports in
8 the record indicated that Democratic Party supporters are no
9 longer being targeted in Albania. See Hoxhallari v.
10 Gonzales, 468 F.3d 179, 187 (2d Cir. 2007). Petitioner
11 fails to present any evidence contradicting these findings.
12 See Xian Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
13 (2d Cir. 2006); Jian Hui Shao v. Mukasey, 546 F.3d 138, 171
14 (2d Cir. 2008).
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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