Kalaj v. Mukasey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0241n.06
Filed: May 6, 2008
No. 07-3255
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARASH KALAJ, et al., )
)
Petitioners-Appellants, )
) ON PETITION FOR REVIEW
v. ) OF A DECISION OF THE
) BOARD OF IMMIGRATION
MICHAEL B. MUKASEY, ) APPEALS
)
Respondent-Appellee. )
Before: BOGGS, Chief Judge; and MARTIN and SILER, Circuit Judges.
PER CURIAM. Petitioner Marash Kalaj and his family, natives of Albania, moved to
reopen before the Board of Immigration Appeals (BIA) their previously rejected claims of
asylum, withholding of removal, and relief under the Convention Against Torture (CAT), based
on allegedly deteriorating country conditions in Albania and the ineffective assistance of their
previous counsel. The BIA denied their motion to reopen. We affirm.
I
This court has addressed this case once before, when it affirmed the BIA’s denial of the
Kalajs’ original petition. See Kalaj v. Gonzales, 185 F. App’x 468 (6th Cir. 2006). We
concluded that there was substantial evidence to support the Immigration Judge’s (IJ) adverse
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credibility finding, and that, even if their testimony were credible, the Kalajs still failed to
demonstrate either past persecution or a well-founded fear of future persecution. Id. at 471-74.
After losing their appeal on the merits, the Kalajs filed an untimely1 motion with the BIA to
reopen proceedings, based on (1) allegedly changed country conditions and (2) ineffective
assistance of their former counsel in presenting their original claim.2
II
“Generally, we review the Board’s denial of a motion to reopen for abuse of discretion.”
Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir. 2005) (citing INS v. Doherty, 502 U.S. 314,
321-22 (1994)). “However, where there is a claim of ineffective assistance of counsel, we
review this question of law de novo.” Ibid.
A
With regard to their first argument, an untimely motion to reopen may be granted under 8
U.S.C. § 1229a(c)(7)(C)(ii) if “the motion . . . is based on changed country conditions arising in
the country of nationality . . . if such evidence is material and was not available and would not
have been discovered or presented at the previous proceeding.” See also 8 C.F.R. §
1003.2(c)(3)(ii). Importantly, however, “an alien filing a motion to reopen based on changed
country conditions cannot rely on speculative conclusions or mere assertions of fear of possible
persecution, but instead must offer reasonably specific information showing a real threat of
1
8 U.S.C. § 1229a(c)(7)(C)(i) states that, subject to limited exceptions, a “motion to reopen shall be filed within 90
days of the date of entry of a final administrative order of removal.” See also 8 C.F.R. § 1003.2(c)(2). The order of
removal here became final when the BIA adopted and affirmed the IJ’s decision on February 3, 2005. See 8 C.F.R.
§ 1241.1. The Kalajs filed their motion to reopen on October 25, 2006, more than a year and a half later.
2
The Kalajs also argue that the BIA should have reopened removal proceedings against them sua sponte, and that
the BIA’s failure to do so denied them due process. This argument is not reviewable by this court. See Harchenko
v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004) (“[T]his court lacks jurisdiction to find that the BIA abused its
discretion by failing to exercise its discretionary authority to reopen [the petitioner]’s proceedings. . . . The decision
whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA.”) (citing cases).
2
individual persecution. . . . The feared persecution must relate to the alien individually, not to
the population generally.” Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (internal
quotation omitted) (emphasis added).
The Kalajs’ proffered “evidence” falls woefully short of this standard. It consists of a
random collection of Internet articles principally describing on-going political tension between
the ruling Democrats and the opposition Socialists in Albania, along with two country reports
(one from the U.S. State Department and a second from a now-defunct human rights
organization) describing both positive and negative developments in Albania’s recent human
rights record. There is nothing even remotely individualized in these documents, and we will not
find that the BIA abused its discretion in refusing to reopen a case when presented with such
equivocal and anecdotal evidence of changed country conditions. We have repeatedly rejected
similar attempts by Albanian petitioners to reopen their asylum cases based on largely
unsubstantiated allegations of worsening conditions in their home country. See, e.g., Vata v.
Gonzales, 243 F. App’x 930, 947 (6th Cir. 2007) (upholding denial of motion to reopen because
petitioner did not submit “evidence of changed country conditions in Albania[; r]ather, the
allegedly new and material evidence depict[ed] a level of corruption and intolerance that has
plagued Albania throughout the past decade”); Vuthi v. Gonzales, 209 F. App’x 470, 473 (6th
Cir. 2006) (upholding denial of motion to reopen where “reports and articles” were neither
individualized nor indicative of a deterioration of conditions in Albania).
B
With regard to the Kalajs’ second argument, there is no explicit statutory or regulatory
authority permitting an untimely motion to reopen based on a claim of ineffective assistance of
counsel, but some courts have held that the 90-day time limit may be equitably tolled to enable a
3
deserving petitioner to bring such a claim. See, e.g., Iavorski v. INS, 232 F.3d 124, 133 (2d Cir.
2000); Socop-Gonzalez v. INS, 272 F.3d 1176, 1181 (9th Cir. 2001) (en banc). This circuit,
however, “has never, in a controlling and published opinion, followed suit.” Ajazi v. Gonzales,
216 F. App’x 515, 518 (6th Cir. 2007). We need not decide the question, because even if we
were inclined to apply equitable tolling to permit the Kalajs’ claim to go forward, it would still
fail for lack of prejudice. Cf. Miculi v. Ashcroft, 96 F. App’x 338, 340 (6th Cir. 2004) (declining
to address equitable tolling argument because petitioner failed to demonstrate prejudice
regardless).
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
both meet the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), and “show that he or she was prejudiced by the actions or inactions of counsel.” Sako v.
Gonzales, 434 F.3d 857, 863 (6th Cir. 2006) (quoting Matter of Assaad, 23 I. & N. Dec. 553, 556
(BIA 2003)). There is no dispute that the Kalajs adhered to the procedural requirements of
Lozada. But they have utterly failed to demonstrate prejudice. The Kalajs complain that their
former counsel did not give the IJ corroborating documents until the day of their hearing,
whereupon the IJ refused to consider the documents since they were untimely filed. They also
accuse their former counsel of falsifying one document’s notarization, which the IJ attributed to
Mr. Kalaj and formed part of the basis for his adverse credibility finding. Nevertheless, both the
IJ and this court on appeal expressly held that, even presuming the Kalajs’ credibility, their claim
would still fail because they could not demonstrate either past persecution or a well-founded fear
of future persecution. See Kalaj, 185 F. App’x at 472-74. Thus, even if the Kalajs’ former
counsel had not made any of the missteps they tax her with, and presented all of the material
4
they now wish had been before the IJ, it would have made no difference to the outcome of their
case. They have therefore suffered no prejudice.
III
The decision of the BIA denying the Kalajs’ untimely motion to reopen is affirmed.
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