Komi v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0419n.06
Filed: June 22, 2006
Case No. 04-4349
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHKELQIM KOMI and )
ALMA KOMI, )
)
Petitioners, ) ON PETITION FOR REVIEW
) FROM AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, )
Attorney General of the )
United States of America, )
)
Respondent. )
)
_______________________________________
BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; ZATKOFF, District Judge.*
Lawrence P. Zatkoff, District Judge. On May 14, 2004, the Immigration Judge denied
Petitioners’ motion to reopen their application for asylum. On October 21, 2004, the Board of
Immigration Appeals (“the BIA”) summarily affirmed the denial. The instant Petition for Review
to this Court followed. For the following reasons, we DENY the Petition for Review.
I. BACKGROUND
Petitioners, a married couple aged 34 and 30, are natives of Albania. They allege that they
entered the United States illegally in July 2001, in Detroit, Michigan. On November 3, 2001,
Petitioners filed an application for asylum. The application stated that Petitioner Shkelqim’s father
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan,
sitting by designation.
had attempted to escape from Albania in 1950, and the family had been subsequently persecuted by
the government. Petitioner also claimed to have been involved in anti-communist activities since
the early 1990s. Petitioner claimed to have been detained and beaten by police twice in 1990 and
1991. Petitioner claimed to have been an election observer in 1996 and 1997, and to have been
beaten in connection with those activities. Petitioner claimed that he continued his political activity
from 1997 until 2001, and was detained and beaten several times. Petitioner also claimed his wife
was beaten and raped because of his political activity in June 2001. Petitioners allege they left
Albania for the United States in July 2001.
Petitioners’ application for asylum was referred to an Immigration Judge. The Immigration
and Naturalization Service instituted removal proceedings on December 26, 2001, by serving
Petitioners with a notice to appear. The Immigration Judge held hearings on Petitioners’ case in
May and June 2002. On November 19, 2003, the Immigration Judge issued an order denying
Petitioners’ application for asylum. The Immigration Judge held that Petitioners’ testimony was
inconsistent and not fully credible. J.A. 97-100.
Petitioner Alma alleges she learned the application was denied when she called a court
telephone number on or about December 26, 2003. Petitioners’ attorney claims he did not receive
a copy of the decision until January 5, 2004, when he went to the Immigration Court to obtain a
copy. Petitioners filed an appeal with the BIA on January 23, 2004. On March 31, 2004, the BIA
denied Petitioners’ appeal as untimely, because it was not filed within thirty days of the Immigration
Judge’s decision. J.A. 58. The BIA acknowledged Petitioners’ attorney’s claim that he did not
receive the decision. However, the BIA noted that the record contained a cover letter showing the
decision was mailed to the correct address, and there was no returned mail in the record. The BIA
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held that Petitioners’ attorney’s affidavit was an insufficient basis to accept the untimely appeal.
J.A. 58. Petitioners did not seek review of the March 31, 2004, decision in this Court.
On April 26, 2004, Petitioners filed a motion to reopen with the Immigration Judge.
Petitioners argued that they received ineffective assistance of counsel because their attorney failed
to inform them of the original decision and the deadline for appeals. On May 14, 2004, the
Immigration Judge denied Petitioners’ motion to reopen. Petitioners appealed the decision to the
BIA. On October 21, 2004, the BIA summarily denied the appeal, without issuing a separate
opinion. The petition to this Court followed.
II. ANALYSIS
Petitioners argue that the denial of their motion to reopen should be reversed for two
reasons: the denial was an abuse of discretion, and violated Petitioners’ due process rights.
A. Abuse of Discretion
This Court has held that when “determining whether the [BIA] abused its discretion, this
Court must decide whether the denial of [the] motion to reopen . . . was made without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible basis
such as invidious discrimination against a particular race or group.” Sako v. Gonzales, 434 F.3d 857,
863 (6th Cir. 2006) (citation omitted). The Supreme Court has held that motions to reopen in
immigration proceedings are disfavored, and that the Attorney General has “broad discretion” to
deny such motions. INS v. Doherty, 502 U.S. 314, 323 (1992). This standard is applied “regardless
of the underlying basis of the alien’s request [for relief].” Id. (citation omitted).
Petitioners note that the Immigration Judge’s decision denying the motion to reopen merely
found that Petitioners’ attorney was served by mail with the earlier decision, and did not address
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Petitioners’ claims of ineffective assistance of counsel. Petitioners argue that the Immigration Judge
did not inform them of the appellate procedures during the initial hearing, and the written decision
was delayed almost seventeen months. In addition, the decision was delivered by regular, not
certified mail.
By any account, the Immigration Judge’s order was considerably terse. The order, in its
entirety, reads as follows: “The record reflects that respondent’s counsel was served by mail and a
cover sheet reflecting service is contained in the file. See attached.” J.A. 13. This Court has held
that “[c]ursory, summary, or conclusory statements are inadequate.” Daneshvar v. Ashcroft, 355
F.3d 615, 626 (6th Cir. 2004). However, the order must be evaluated in the context of the arguments
made in the motion.
The BIA requires motions to reopen based on ineffective assistance of counsel claims to meet
the Lozada requirements. Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998). This Court has noted
that:
Briefly, the Lozada requirements are (1) that the motion be supported by an affidavit
detailing counsel’s failings, (2) that counsel be informed of the allegations, and (3)
that the motion show that disciplinary charges have been filed with the appropriate
authority.
Sako, 434 F.3d at 863 (citations omitted). However, “[t]he failure to file a complaint is ‘not fatal’
if a petitioner provides a ‘reasonable explanation’ for his decision.” Sene v. Gonzales, Nos.
04-3794, 04-4115, 2006 U.S. App. LEXIS 4270, *6 (6th Cir. 2006). Petitioners’ motion did not
contain an affidavit detailing counsel’s failings; rather, the motion contained an affidavit from
Petitioners’ counsel stating that he had not failed them at all. The motion also contained a statement
that no charges had been filed with the appropriate authority.
Petitioners argue that the facts of this case do not require strict compliance with the Lozada
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requirements. First, Petitioners claim that disciplinary charges need not be filed when the record
reflects a prima facie case of ineffective assistance of counsel. However, this Court has considered
and rejected that exact argument: “Although [the petitioner] argues that strict compliance with the
Lozada requirements should not be required if ineffective assistance is apparent from the record, we
have not adopted this approach.” Sene, 2006 U.S. App. LEXIS 4270 at *6.
Petitioners’ second, and primary, argument is that although the record reflects a prima facie
case of ineffective assistance of counsel, counsel was in fact not at fault. Instead of filing an
affidavit detailing their counsel’s ineffective assistance, Petitioners filed an affidavit by their counsel
stating that he was not ineffective. J.A. 56. In their petition to this Court, Petitioners note that their
motion to reopen “was based on the assertion by Petitioners’ counsel that he had not received the
decision of the Immigration Judge within the 30-day period following the date of the decision, and
had thus missed the normal filing deadline.” Pet. Brief at 4. Later in the brief, Petitioners’ counsel
states that: “However, it strikes me as unseemly that I should file a complaint against myself when
I have done nothing wrong. Why should I send my clients to another attorney so we can play out
some charade of complying with the complaint requirements? My clients have no complaint.” Pet.
Brief at 22.
Petitioners’ attorney is using an ineffective assistance of counsel claim as a procedural
mechanism to attack the BIA’s refusal to allow the untimely appeal, while at the same time
stridently denying that there has been ineffective assistance of counsel. The real argument is that,
based on the way the Immigration Judge issued the decision, the BIA should have accepted the
untimely appeal. Petitioners’ argument that they had no choice but to then file the motion to reopen
is incorrect. Petitioners could have appealed the BIA’s refusal to accept the appeal to this Court.
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See Malak v. Gonzales, 419 F.3d 533 (6th Cir. 2005). Instead, Petitioners filed the motion to reopen,
which, while ostensibly based on ineffective assistance of counsel, really challenged the BIA’s
refusal to accept the appeal.
These circumstances do not warrant the waiving of the Lozada requirements. In fact,
accepting Petitioners’ argument would completely eviscerate the requirements. This Court has held
that “[s]ound policy reasons support compliance with the Lozada requirements. The requirements
facilitate a more thorough evaluation by the BIA and ‘discourage baseless allegations.’” Hamid v.
Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003) (citation omitted). Petitioners argue that they should
be allowed to bring an ineffective assistance of counsel claim that they essentially admit has no basis
in fact. This would defeat the purpose of the Lozada requirements. The Third Circuit addressed a
similar issue in Georcely v. Ashcroft, 375 F.3d 45 (3d Cir. 2004). The Third Circuit affirmed the
denial of the petitioner’s motion to reopen based on ineffective assistance of counsel, noting that:
[I]f freely indulged, ineffective assistance claims would undermine the stringent
requirements of section 1229a(b)(5)(C) (and much else in the statute besides) so the
BIA has insisted that the alien has to comply with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). These include the filing of a bar
complaint against counsel or adequately explaining why the complaint has not been
filed.
***
The present case is a perfect example. A claim of inadequate representation has not
been squarely made either before the [BIA] or on this appeal. Counsel has sought to
make his own carelessness, if that is the proper characterization, an excuse for
Georcely’s failure to appear, while never conceding that his own conduct as counsel
was ineffective representation--a standard that requires a showing of significant
incompetence and a likely adverse effect on the ultimate outcome.
Id. at 51.
In the instant case, Petitioners’ motion to reopen was essentially a challenge to the BIA’s
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decision to not accept the untimely appeal. However, Petitioner did not provide any new evidence
supporting that motion. The Immigration Judge’s terse order was an affirmation of the BIA’s
previous decision. In that context, a more lengthy and detailed opinion was not necessary. Thus,
it cannot be said that the decision was without “a rational explanation.” The Immigration Judge did
provide an explanation: the motion to reopen was denied on the same basis that the earlier appeal
to the BIA was denied, namely, that there were insufficient grounds to allow the untimely appeal.
Furthermore, even if Petitioners’ ineffective assistance of counsel claim had met the Lozada
requirements, they would still be required to show prejudice. The loss of the right to appeal is not
sufficient prejudice; Petitioners must show that, but for their counsel’s ineffective assistance, they
would have been allowed to remain in the country. See Sako, 434 F.3d at 865.
The Immigration Judge’s decision to deny Petitioners asylum was based on two grounds:
untimely application, and the merits of the application. Regarding the untimeliness of the
application, the Immigration Judge held that Petitioners had not demonstrated by clear and
convincing evidence that they applied for asylum within one year of arrival. Petitioners filed for
asylum in November 2001, and claimed they arrived in the United States on July 20, 2001. The
Immigration Judge held that:
Respondent has failed to submit clear and convincing evidence establishing the date,
time and place of admission. Respondent has submitted no corroborative evidence
of the date of his departure from Albania, the date of his arrival into Zurich,
Switzerland or into Toronto, Ontario, Canada. Respondent claims that he traveled
through these countries prior to securing entry into the United States. When
questioned by the Court as to the possible presentation of objective, corroborative
evidence, such as, boarding passes, ticket receipts, hotel or taxi receipts, Respondent
initially claimed that these items were returned to the smuggler who had provided
the false passports. When the Court expressed surprise that these items were
considered critical by a smuggler, Respondent then claimed that the items were
misplaced.
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Respondent apparently remained in Canada with a friend for a period of time prior
to securing his illicit entry. No affidavit of the dates of presence in Canada has been
submitted. Respondent has further failed to submit evidence to establish that his
failure to file an application for asylum was due to extraordinary circumstances of
changed circumstances in the country from which asylum is sought.
J.A. 89.
The Immigration Judge further held that the application would be denied even if it were
deemed timely. The Immigration Judge held that:
In the instant case, I have considered the rationality, internal consistency and
inherent persuasiveness of the respondent’s testimony in reaching my conclusion
with regard to the respondent’s credibility. The respondent’s testimony and his
applications for asylum are inconsistent and the inconsistencies are critical.
Moreover, the respondent’s testimony omits events and details of his claims of
persecution set forth in the application. The respondent has failed to provide a
convincing explanation for these discrepancies and omissions.
J.A. 97.
The Immigration Judge noted that there were inconsistencies between Petitioner Shkelqim’s
testimony and application regarding the number of times he was arrested and beaten. There was also
an inconsistency regarding the date of an alleged assassination attempt. The Immigration Judge
noted that an article submitted by Petitioners regarding Petitioner Shkelqim’s arrest appeared to be
in a different type and setting than the rest of the paper. The Immigration Judge stated that “[t]he
profile of asylum claims and country conditions from May of 2001, Exhibit 23, note that the
newspapers in Albania have been known to publish articles for the purpose of bolstering asylum
claims for individuals. The paper submitted bears the indicia of such publication.” J.A. 98. The
Immigration Judge also noted inconsistencies regarding the treatment of Petitioner Alma after the
alleged rape, and Petitioners’ preparation for departure. Petitioners claimed they decided to leave
after an assassination attempt on Petitioner Shkelqim on June 20, 2001, and the rape of Petitioner
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Alma on June 26, 2001. However, the withdrawal of funds to pay the smuggler took place on June
17, 2001. The Immigration Judge held that Petitioners were not credible, and their asylum claim
failed for lack of proof. J.A. 99.
Regarding the timeliness of their application for asylum, Petitioners note that the Chicago
Asylum Office determined Petitioners’ application was timely before referring the matter to the
Immigration Judge. Petitioners argue that the Immigration Judge should have referred to the
Asylum Officer’s notes before making her decision. However, Petitioners have not provided any
evidence showing that their application was timely.
Petitioners also claim that the Immigration Judge’s credibility determination would have
been a substantial issue on appeal. An Immigration Judge’s credibility determinations are treated
as findings of fact, and are “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Vasha v. Gonzales, 410 F.3d 863, 869 (6th Cir. 2005) (citation omitted).
Credibility findings are given substantial deference, but “must be supported by specific reasons.”
Id. Inconsistencies and omissions can support an adverse credibility finding, but they must relate
to “issues that go to the heart of the applicant's claim.” Id.
In the instant case, the Immigration Judge provided specific examples of inconsistencies and
omissions relating to the heart of Petitioners’ claim: the persecution they allegedly suffered in
Albania. This Court considered a similar case in Vushaj v. Gonzales, 152 Fed. Appx. 511 (6th Cir.
2005). The petitioner, an Albanian citizen, claimed that her father had been imprisoned for dissident
activities during the communist regime. The petitioner claimed she had been persecuted for her
activities with the Albanian Democratic Party. Petitioner specifically claimed that she had been
beaten and raped. The Immigration Judge determined the petitioner was not credible, and denied
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her application. This Court affirmed, noting four inconsistencies the Immigration Judge had
identified. Id. at 515-16.
Similarly, the Immigration Judge in the instant case identified several inconsistencies
between Petitioners’ application and testimony. Petitioners argue the Immigration Judge’s
credibility finding would have been a substantial issue on appeal. However, as discussed above, the
loss of the right to appeal is not sufficient prejudice in and of itself. Petitioners must show that they
would have prevailed on appeal. Petitioners have not made a showing sufficient to reverse the
Immigration Judge’s credibility determination. Thus, they have not shown prejudice.
Since Petitioners have not complied with the Lozada requirements, and have not
demonstrated prejudice, the decisions of the Immigration Judge and BIA must be upheld.
B. Due Process
Petitioners argue that their due process rights were violated in two ways: the denial of their
right to appeal the initial decision of the Immigration Judge, and the failure of the Immigration Judge
and the BIA to consider their motion to reopen in its entirety. These claims are without merit.
The BIA rejected Petitioners’ appeal of the Immigration Judge’s decision to deny asylum
because it was not timely filed. As noted above, Petitioners could have appealed that decision to
the Sixth Circuit, but chose not to. Thus, the loss of Petitioners’ right to appeal the denial of their
request for asylum does not constitute a denial of due process.
Likewise, Petitioners’ claim that the Immigration Judge and BIA violated their due process
rights by failing to consider their motion to reopen in its entirety is unpersuasive. It is true that the
Immigration Judge’s opinion did not directly address Petitioners’ ineffective assistance of counsel
claim. However, Petitioners’ claim that we “do not know the reasons the Immigration Judge denied
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the motion to reopen” is incorrect. The Immigration Judge based her decision on the record showing
that her earlier decision had been mailed to Petitioners’ attorney.
The terseness of the Immigration Judge’s order would be inappropriate were it deciding
Petitioners’ initial request for asylum. However, that issue had already been determined in a
fourteen page opinion issued by the Immigration Judge. The limited issue before the Immigration
Judge in the order in question was whether there were sufficient grounds to reopen the case. As
discussed above, although the motion to reopen was ostensibly based on ineffective assistance of
counsel, the affidavit supporting the motion argued that the initial appeal was timely. That argument
was addressed by the Immigration Judge in her order.
Petitioners’ argument that the BIA’s summary affirmation violated due process is without
merit. The BIA issued the summary affirmation pursuant to the streamlined procedures established
in 8 C.F.R. § 1003.1(3)(4). This Court has repeatedly held that summary affirmations do not violate
due process. See Tchokothe v. Ashcroft, 111 Fed. Appx. 421, 422 (6th Cir. 2004) (“However, our
court has upheld the BIA’s streamlined appeals procedure against both administrative law and due
process challenges, even when it affirms an [Immigration Judge] ‘without opinion.’”) (citing Denko
v. INS, 351 F.3d 717, 727-30 (6th Cir. 2003)).
III. CONCLUSION
For the foregoing reasons, we DENY the Petition for Review.
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