Marke v. Attorney General of the United States

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-13-2005
Marke v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3031
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3031
NURI MARKE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(A73-569-674)
Submitted Under Third Circuit LAR 34.1(a)
June 7, 2005
Before: AMBRO, STAPLETON, and ALARCÓN 1 , Circuit Judges
(Filed: June 13, 2005 )
OPINION
1
The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
ALARCÓN, Circuit Judge
Nuri Marke, a native and citizen of Macedonia, formerly Yugoslavia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen.
He maintains that the BIA abused its discretion in rejecting his contentions that he was
denied the effective assistance of counsel and that country conditions had changed since
the Immigration Judge (“IJ”) denied his application for asylum. We deny the petition for
review because we conclude that his ineffective assistance of counsel claim was not
timely filed. We also hold that he has failed to demonstrate that changed country
conditions support his claim that he has a well-founded fear of persecution if he is not
granted asylum in the United States.
I
Mr. Marke entered the United States as a non-immigrant visitor in November 1988
with authorization to remain for six months. A notice to appear (“NTA”) was issued on
August 25, 1997. It alleged that Mr. Marke was removable because he remained in the
United States longer than permitted by his visa.
At his removal proceedings, Mr. Marke conceded the allegations in the NTA and
applied for asylum and withholding of removal. On May 29, 1998, the IJ found Mr.
Marke removable and denied his application for asylum and withholding of removal. Mr.
Marke’s request for voluntary departure was granted. The IJ ordered Mr. Marke to depart
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voluntarily by July 18, 1998, and if he did not, that he be removed to Macedonia.
Mr. Marke filed an appeal with the BIA on June 29, 1998. The BIA affirmed the
IJ’s removal order without opinion on July 10, 2002. The BIA also granted him thirty
days to depart voluntarily. The BIA’s decision was served on Robert J. Shannon, Mr.
Marke’s attorney of record.
On May 20, 2004, Mr. Marke, represented by his present counsel, filed a motion to
reopen his removal proceedings. He alleged that Mr. Shannon’s representation was
ineffective because he failed to advise him that his appeal had been affirmed by the BIA
and that he had thirty days to depart voluntarily. He alleged that he did not depart within
the thirty-day period because he did not learn of the BIA’s order until several months
later. He further asserted that because of his former counsel’s ineffectiveness, he is barred
for ten years from receiving certain forms of relief, including adjustment of status.
II
Mr. Marke contends that the BIA erred in denying his motion to reopen for failure
to show prejudice from his former counsel’s negligence. The BIA also concluded,
however, that the claim of ineffectiveness of counsel was untimely under the ninety-day
time limit set forth in 8 C.F.R. § 1003.2(c)(2).1
1
8 C.F.R. § 1003.2(c)(2) provides:
Except as provided in paragraph (c)(3) of this section, a party may file only
one motion to reopen deportation or exclusion proceedings (whether before the
3
“[W]hen the Board or an Immigration Judge denies reopening on prima facie case
grounds, the ultimate decision should be reviewed for an abuse of discretion, while
findings of fact should be reviewed for substantial evidence.” Sevoian v. Ashcroft, 290
F.3d 166, 174 (3d Cir. 2002). Thus, “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). “Discretionary decisions of the BIA will not be disturbed unless
they are found to be ‘arbitrary, irrational, or contrary to law.’” Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994) (quoting So Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1979)).
The BIA’s initial decision was issued on July 10, 2002. Mr. Marke did not file his
motion to reopen until May 20, 2004.
Mr. Marke’s opening brief does not address the BIA’s alternative holding that his
motion to reopen was untimely, nor does he argue that the time for filing his motion to
reopen was tolled because of his former attorney’s alleged failure to inform him of the
BIA’s decision. “An issue is waived unless a party raises it in its opening brief, and for
Board or the Immigration Judge) and that motion must be filed no later than
90 days after the date on which the final administrative decision was rendered
in the proceeding sought to be reopened, or on or before September 30, 1996,
whichever is later. Except as provided in paragraph (c)(3) of this section, an
alien may file only one motion to reopen removal proceedings (whether before
the Board or the Immigration Judge) and that motion must be filed no later
than 90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened.
4
those purposes a passing reference to an issue . . . will not suffice to bring that issue
before this court.” Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994) (citation and quotation omitted). Thus, Mr. Marke has waived any challenge in
this appeal to the correctness of the BIA’s determination that the motion to reopen based
on ineffectiveness was untimely. Accordingly, we do not consider the merits of the BIA’s
alternative holding that he was not prejudiced by his attorney’s alleged neglect.
Mr. Marke’s motion to reopen is also based upon changed country conditions. That
claim is not barred by the time limitations set forth on 8 C.F.R. 1003.2(c) pursuant to 8
C.F.R. 1003.2(c)(3).2 Mr. Marke submitted evidence to the BIA that between January and
2
8 C.F.R. § 1003.2(c)(3) provides:
In removal proceedings pursuant to section 240 of the Act, the time limitation
set forth in paragraph (c)(2) of this section shall not apply to a motion to
reopen filed pursuant to the provisions of § 1003.23(b)(4)(ii). The time and
numerical limitations set forth in paragraph (c)(2) of this section shall not
apply to a motion to reopen proceedings:
(i) Filed pursuant to the provisions of § 1003.23(b)(4)(iii)(A)(1) or
§ 1003.23(b)(4)(iii)(A)(2);
(ii) To apply or reapply for asylum or withholding of deportation based on
changed circumstances arising in the country of nationality or in the country
to which deportation has been ordered, if such evidence is material and was
not available and could not have been discovered or presented at the previous
hearing;
(iii) Agreed upon by all parties and jointly filed. Notwithstanding such
agreement, the parties may contest the issues in a reopened proceeding; or
(iv) Filed by the Service in exclusion or deportation proceedings when the
basis of the motion is fraud in the original proceeding or a crime that would
support termination of asylum in accordance with § 1208.22(f) of this chapter.
(continued...)
5
July of 2001, violence had occurred in Macedonia as a result of conflict between
Albanian separatists and the Macedonian government. He submitted six additional
documents showing that (1) Macedonian police had conducted torture between January
2000 and October 2002, (2) the police had treated ethnic minorities badly, (3) twenty-
seven Albanians in transit were beaten or treated badly by the police, (4) tensions in
Macedonia continued in April 2004 when the Albanian flag was flown in Macedonia, (5)
government troops had committed grave abuses in an Albanian village in August 2001,
and (6) police abuse of Albanians continued the day that a framework peace agreement
was signed between the government and ethnic Albanians.
The BIA held that Mr. Marke had not met his burden of explaining “how those
changes affect his claim for asylum.” Before this court, Mr. Marke contends that he
should not be “required to lead the agency like a small child, quote from each exhibit and
state with yet more ‘detail or specificity’ how the changed country conditions in
Macedonia affect his asylum claim . . . .” He has failed to explain in his petition for
review how the alleged changed country conditions affect his claim.
The BIA was correct to place the burden of proof of changed country conditions
on Mr. Marke because Mr. Marke never established past persecution. See, e.g.,
2
(...continued)
6
Ahmadshah v. Ashcroft, 396 F.3d 917, 920 (8th Cir. 2004) (noting that unless the
petitioner has established past persecution, he or she has the burden of proving changed
country conditions); Simtion v. Ashcroft, 393 F.3d 733, 737 (7th Cir. 2005) (dismissing
petitioner’s motion to reopen based on changed country conditions because petitioner
failed to explain how a ruler’s return to power created conditions different from those that
prevailed when the petitioner originally sought asylum); cf Berishaj v. Ashcroft, 378 F.3d
314, 326-27 (3d Cir. 2004) (holding that because petitioner had established past
persecution, the burden of proof regarding changed country conditions was placed on the
Government). The BIA did not abuse its discretion by holding that Mr. Marke had failed
to meet his burden of showing how changed country conditions would affect his claim for
asylum.
For the foregoing reasons, we will affirm the BIA’s denial of the motion to
reconsider.
7