Filed: May 12, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-12-2006 Filja v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 04-1782 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Filja v. Atty Gen USA" (2006). 2006 Decisions. Paper 1002. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1002 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-12-2006 Filja v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 04-1782 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Filja v. Atty Gen USA" (2006). 2006 Decisions. Paper 1002. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1002 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-12-2006
Filja v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-1782
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Filja v. Atty Gen USA" (2006). 2006 Decisions. Paper 1002.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1002
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1782
____________________________________
IGLI FILJA, LULJETA FILJA, ENDRIT FILJA
Petitioners
v.
ALBERTO R. GONZALES, Attorney General
of the United States*
Respondent.
*(Substituted pursuant to Fed. R. App. P. Rule 43(c))
____________________________________
On Petition for Review of an Order of
The Board of Immigration Appeals
(BIA Nos. A73 540 510; A73-540 509; A73 540 508)
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2006
____________________________________
Before: BARRY and AMBRO, Circuit Judges, and
DEBEVOISE*, Senior District Court Judge
(Filed: May 12, 2006)
*
Honorable Dickinson R. Debevoise, Senior District
Court Judge for the District of New Jersey, sitting by
designation.
____________________________________
OPINION OF THE COURT
____________________________________
Barbara J. Brandes
Law Offices of Barbara Brandes & Associates
225 Broadway, Suite 900
New York, New York 10007
ATTORNEY FOR PETITIONERS
Thomas A. Marino
United States Attorney, Middle District of Pennsylvania
Stephen R. Cerutti, II
Assistant United States Attorney, Middle District of
Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-1754
William C. Peachey, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
ATTORNEYS FOR RESPONDENT
Debevoise, Senior District Judge
Petitioners, Igli Filja, his wife, Luljeta Filja, and his son,
Endrit Filja,1 petition for review of a February 23, 2004, decision
of the Board of Immigration Appeals (the “BIA” or “Board”)
1
In this opinion Igli Filja will be referred to as “Filja.”
When reference is made to his wife or son, they will be
identified as such. In the transcript of the March 20, 1996
hearing before the IJ the son is referred to as Andrea.
2
denying petitioners’ motion to reopen a previous decision of the
Board affirming an Immigration Judge’s (“IJ”) decision denying
petitioners’ requests for asylum and withholding of deportation.
We hold that the BIA misinterpreted the time limitation found in
8 C.F.R. § 1003.2(c)(3)(ii) for motions to reopen due to changed
country conditions and that its denial of the motion on other
grounds was an abuse of discretion. We will grant the petition
and remand the matter to the BIA for further proceedings.
I. Background
Filja was lawfully admitted to the United States on
September 6, 1992. His wife and son were lawfully admitted on
November 29, 1993. In 1994, they filed a request for asylum in
the United States based on prior persecution and a well-founded
fear of future persecution if forced to return to their native
country, Albania.
A. The IJ Hearing: On June 28, 1996, the IJ held a
hearing on petitioners’ applications for asylum and withholding
of deportation. Filja was the only witness, and what follows is a
summary of his testimony.
After he completed high school in 1982, Filja, because of
his and his family’s suspected opposition to the governing
Communist Party, was not permitted to obtain higher education.
In 1985, through the intervention of a relative of his father, he
obtained a job as a printer. The relative was a supporter of the
Communist Party. Feeling sorry for Filja (even though Filja was
a supporter of democratic principles) the relative used his
influence to obtain a position for him at the Party newspaper
called Zeri i Popullit - Voice of the People. Filja was relegated
to the disfavored night shift and worked six nights a week.
There came a time in 1989 when Filja met with 20 to 25
workers to discuss their low wages, housing, the politics of the
government and lies that the government was printing in the
newspaper. The next day he and several others who had spoken
that night were taken to the secret police. The police informed
them “we hope these things will never repeat.” On September 5,
1990, Filja again spoke to a group of workers and was again
3
called in for questioning. He was handcuffed for three and one-
half hours and was told he was causing a revolution inside the
company, which could cause him a lifetime in jail.
Despite the threat, Filja promised to speak to the people
again on January 10, 1991, a promise he carried out. Instead of
calling him into the police station, the authorities, who held
positions in both the printing company and the government, took
another tack. On June 21, 1991, they sent him and the three
others who spoke at the meetings to Canada, purportedly to
receive training upon a high speed, three-color printing machine
which the newspaper was purchasing for $200,000 from a
Canadian company called New Concepts. When the four men
arrived in Canada they found no new machine, and Filja was put
to work for ten hours a day as a cleaner and folding newspapers.
In mid-August, 1991, the four were instructed to return to
Albania. At that time Filja believed that the Canadian
assignment was a ploy to provide cover for the newspaper
officers in Albania who, Filja speculated, had absconded with
the $200,000 appropriated for the purchase of the press. He also
believed that upon the return of the four men to Albania they
would be arrested and charged with the theft. The four men
refused to return to Albania.
Filja described a political change that took place after his
refusal to return from Canada. He and his companions had left
for Canada on June 21, 1991. At that time the Socialist Party
(which in 1990 became successor to the Communist Party) was
in power and owned and controlled the paper. In his original
asylum application Filja based his asylum request upon his
opposition to the Socialist Party. The Democratic Party, which
he supported, was out of power, and its members were under
continuing attack by the Socialist Party.
In late 1991, however, several months after Filja refused
to return from Canada, the Democratic Party took control of the
government, but the police and secret police still contained
supporters of the Socialist Party. Although the Democratic Party
destroyed the company that owned Zeri i Popullit, it sold the
paper to the same people who owned it before - the Socialists.
4
Filja applied for asylum in Canada, which was denied in
1992. Three months after the denial he obtained a visa and
entered the United States on September 6, 1992.
About a month before the IJ hearing there occurred a
series of events that caused Filja further concern. His father,
who continued to live in Albania, was served with what
purported to be a warrant for Filja’s arrest on charges of having
caused serious damage to the state in the amount of $200,000 by
not returning to his duties. The father sent a copy of the warrant
to Filja, who received it two weeks before the hearing. This
inspired new fears in Filja’s mind, namely, that he was being
pursued not only by the Socialists but also by the Democratic
Party, which, because he had worked for the Socialist Zeri i
Popullit, had concluded that he was a Socialist. At the hearing
Filja’s attorney filed a supplemental statement to reflect this fear,
and the IJ admitted a photocopy of the warrant and a translation
into evidence.
The IJ’s January 16, 1997 opinion set forth the events
substantially as Filja testified about them. The IJ stated with
respect to the arrest warrant:
This document was submitted by the Service to the
embassy in Tirana. In a FAX communication
signed by the Honorable Consul Susan Lively, the
Document in question turns out to be fraudulent.
Thereupon the IJ concluded that:
Respondent’s story never happened at all. I feel
that after seeing his date of arrival and his wife and
son’s, the date when the travel documents were
issued, that the respondents planned very carefully
their departure from Albania. Respondent’s
reasons for coming to the USA in my opinion are
not related to his political activities, which I find
never happened at all, but to personal reasons
probably dealing with their wishes to reside and
work in the USA.
5
. . . Respondent’s testimony lacks in credibility and it is
rejected as incoherent and implausible, short of calling it
a total fabrication in an attempt to convince the court to
grant this application for asylum.
In accordance with his opinion, the IJ ordered that the
applications for asylum and withholding of deportation be
denied. On March 7, 1997, the Filjas appealed to the BIA.
In June 1997, the Socialist Party returned to power in
Albania. This occurred after the IJ’s January 1997 opinion and
well before the decision of the BIA on the Filjas’ appeal.
B. The BIA Appeal: In a March 19, 2002 opinion the
BIA rejected the IJ’s credibility determination. It held that the
fact that the arrest warrant may have been fraudulent did not
provide a basis for a finding that Filja’s testimony was
incredible, because the consul’s FAX was submitted after the
close of the hearing; it had not been admitted into evidence; and
there was no indication that the IJ provided Filja with an
opportunity to rebut it.2 Further, the BIA found the IJ’s
comments about Filja’s motivation for coming to the United
States were speculative in nature and did not support a finding of
incredibility. Consequently, it did not affirm the IJ’s adverse
credibility finding.
Nevertheless, the BIA concluded that Filja’s experiences
in Albania did not rise to the level of persecution. Addressing
Filja’s assertion that he was being framed by his former
employer by a charge of theft of $200,000, the BIA found that:
2
It later developed that the arrest warrant was not
genuine, and that representatives of the newspaper had delivered
it to Filja’s father, apparently in an attempt to induce Filja to
return to Albania. When it developed that the arrest warrant was
bogus, Filja no longer had reason to believe that both the
Democratic Party and the Socialist Party were hostile to him. In
fact, as will be described subsequently, officials of the
Democratic Party later provided assistance to Filja and his wife
and son.
6
even assuming the validity of [the arrest warrant] which
the respondent himself placed into evidence, on its face
the document does not squarely corroborate his claim of
being accused of misappropriating or stealing $200,000 in
company funds. To the extent the respondent may be
subject to punishment for not returning to work at his
former place of employment, resulting in financial loss to
the company, it has not been persuasively established that
any such action taken against him would be imposed on
account of a ground protected by the Immigration and
Nationality Act.
The BIA determined that the Filjas had failed to establish
past persecution or a well-founded fear or clear probability of
persecution in Albania based on race, religion, nationality,
membership in a particular social group, or political opinion,
actual or imputed. It dismissed the appeal.
C. Motion to Reopen: On October 9, 2003, the Filjas
moved before the BIA to reopen the proceedings on the grounds
that there had been changed conditions in Albania, and that Filja
was deprived of his due process rights as a consequence of his
former counsel’s ineffective assistance. He also sought
protection under the United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment (the “CAT”). In support of the motion Filja
submitted a greater than 300 page record consisting of Filja’s
and his wife’s affidavits; documents evidencing past persecution
of Filja’s family by the Communists-Socialists; affidavits of
persons having personal knowledge of the family’s past
persecution, Filja’s activities on behalf of the Democratic Party,
and Filja’s assignment to the Canadian printing press project;
and eight reports of the State Department, Human Rights Watch,
and Amnesty International describing continuing persecution by
the Albanian police and secret police of those supporting the
principles of the Democratic Party. The record contains
evidence supporting Filja’s contention that because of the
ineffectiveness of his attorney his case was not fully presented at
his June 28, 1996 hearing before the IJ.
The changed condition upon which Filja based his motion
7
was the June 1997 return to power of the Socialist Party. Filja
relied on the record he submitted to support the significance of
that event and the effect it would have upon him and his family.
In his own affidavit Filja describes the treatment his
family suffered at the hands of the Communist regime after it
came to power when Albania was liberated in 1944. Previously
they had been prosperous. His maternal grandfather had been a
First Captain of the King Zog regime. The Communists seized
their property, executed a number of the family members,
interned some and deported others from their homes to work
camps. Two relatives escaped to the United States and have
been granted asylum. In his affidavit, Filja describes his
family’s and his own participation in the Democratic Party,
formed to oppose the Communist Party’s successor, the Socialist
Party. He participated in toppling the statue of dictator Enver
Hoxha on June 10, 1991, and ten days later left the country for
Canada on the mission to purchase the printing press for the
Socialist Party paper, Zeri i Popullit. He informed a leader of
the Democratic Party of the project before leaving for Canada,
and once in Canada decided to remain. Prior to his IJ hearing he
learned of the arrest warrant that had been delivered to his father,
and, believing it to be genuine, submitted it as evidence. He
later learned that it was false and was prepared by his ex-boss at
the paper to get him back to Albania.
The exhibits include authenticated official certificates of
the execution and imprisonment of Filja’s relatives for opposing
the Communist regime.
Filja’s wife’s affidavit recited that after Filja had been in
Canada for three months, he telephoned her that he was not
going to return. Having no means of support, she went to live
with her family. People from Zeri i Popullit came to her father
and Filja’s father to seek information about Filja, and threatened
her, stating, “if you’re not going to talk to Igli [Filja] about the
situation you and your son are going to pay the price and Igli is
not going to see his son again.” She stated that unknown people
attacked her, her son and her brother. She attributed the attack to
those who threatened her on account of Filja’s continued
absence. “We were coming out from my father’s house. My
8
brother was the first one to get out. He was hit by a motorcycle.
My son and I were fine.”
The brother remained in a coma in a hospital for three
months, but survived. Fearing for her and her child’s lives,
Luljeta Filja went to a friend in the Democratic Party, Niazi
Kosovrasti, and sought his help obtaining a visa. He was
successful, and she was able to travel to the United States in
1993. Kosovrasti, Ex-Secretary of Local Power in the
Democratic Party from 1995 till 1997, submitted a declaration
dated November 12, 2002. It reads:
Filja Igli, descend from an intellectual family with
democratic progressive convictions. With the coming at
the power of communism in 1944, his family was
persecuted from the dictatorial regiment; confiscated his
properties and than imprisoning, shootings, deportations
his closed members of the family. So, in 1947 is shouted
with the deputies group, Karbunara Hysen son of Sheh
and his father, going on with the deportation of Shehu
Drita who was like a parent for File Suzana, Igli’s mother.
In this atmosphere is growing up and educated Filja Igli,
who in younger age felt by himself the pressure of
communism dictatorship which not only have prisoned
and persecute his relatives, but even himself denied from
many social rights. He was not allowed to continue
university studies, but was offered to him a difficult job,
only night’s shift.
I have been introduced personally to File Igli later during
the years 1990-1991 as a noted activist of the democratic
movement in Albania. He have worked for the
dissemination of democratic ideas in the youth rank of the
neighborhood where he lived. Also, he took part in all
the demonstrations that Democratic Party organized
during the years 1990-1991.
In July 1991 Igli went to Canada with a mechanics group
who will remove machinery’s of a printing office which
social government had brought for the production of the
9
communist newspaper “Zeri i Popullit”. Igli didn’t make
this service to the communist. Igli left Canada and went
to America. From July 1991 to March 31, 1992, when
Democratic Party won the general parliamentary
elections, his wife and family have been threaten from the
communists. His wife, Filja Luljeta in the end of year
1991, came to me, in the residency of Democratic Party
worried from the pressure made to her, cause her
husband, Igli, left to America looking for protection from
Democratic Party. After take over the power violently,
on 1991, the communist continue to be in power.
I think that the story of Igli’s leaving on 1991 is not forget
till now, so his coming in Albania can be problematic.
Drita Shehu, one of Filja’s relatives who had been granted
asylum in the United States, submitted an affidavit that stated:
I was granted political asylum base on Persecution,
Mistreatment and Torture. My husband Hysen Shehu
Karbunara and his father were executed on death penalty
with the known “Group of the Deputies” in the year 1947
from Communist Regime. The persecution and torture
followed my family and me; we were deported from our
homes to a remote village where we wore forced to work
in labor camps.
Part of my family it is Suzana (Igli’s mother) and her
sister, my sisters daughters, whom I took care for a long
time because their mother died to young, 28 years old.
I have known Igli myself. He had a hard time growing
and did not have all the privileges like every citizen had,
because of his family background. Because of that he
grew up hating the regime on power, and in 1990 he was
on front of every democratic activity. He helped and
worked against the Social Communist regime in
existence.
Considering his and his family’s background, his hate and
activities he did against the Social Communist regime, I
10
think that him and his family will be in danger and it will
pay for Igli’s actions if he returns in that Social
Communist regime.
Another relative, Mimoza Korca, who was born in
Albania in 1944, submitted a sworn statement concerning the
persecution to which the family had been subjected. It reads in
part:
My name is Mimoza Korca. I am an American citizen
issuing the following statement on behalf of Igli Filja,
who is the son of my first cousin, Suzana Filja.
In November of the year 1944 the communists took the
power in our country and started building the harsh
dictatorship regime that ruled for almost half of century.
My family, as a wealthy one, was among the most
persecuted ones in Albania. The communists sentenced
to death and executed my father, my uncle as well as two
of my first cousins. My father was incriminated as a
collaborator of the anglo-americans and executed. My
uncle, (my father’s brother), was accused as if he was
member of a group that had thrown a bomb against the
Russian Embassy in Tirana, prosecuted and killed under
this untrue accuse. Same destiny had also the two my
first cousins, one of them 23 years old and the other in his
17th year of life.
Without a difference is as well as the political background
of my husband’s family, who has four victims dead as a
result of the communist regime: his father past away
under hunger strike in prison as an act of rebellion against
he regime and three of his uncles were executed by the
communists. According to all of those facts, my point of
view is that if my cousin Igli Filja goes back with his
family in Albania, the so named socialists, (in fact former
communists), that are ruling the country will, without
delay inflict harm to him and his family. So with him, it
will recommence again from the beginning, the sad
history that had started 55 years ago with our families.
11
A Filja friend, Filip Kristani, signed an affidavit
providing details concerning the Canadian venture. It reads:
In 1990, I started to work in Zeri Popullit one of the
biggest newspaper on that time. For Albania, it was also
one of the best propaganda for the regime. I was working
as a mechanical engineer, Igli and I, were working
together on finishing of the newspaper for that company
and we made sure all the machines were working non
stop and we did work, night shift. Igli Filja has been a
friend of mine for more than 15 years I spend with him
many evenings talking about the regime, he always use to
tell me about his family how the communist regime
torched his family and he used to make plans, Igli knew
many people who then became very important on
Democratic Party. In 1991 the company where we
worked had a project to obtain a new printing machine
from Canadian Communist party, I think that was a
rushed time for the socialist party because of the election,
so we had to go in Canada to specialize on the best color
printing machine. Igli was the first one who said we
should not return for this project and that’s what we did
we never went back to Albania. I believe if Igli Filja goes
back in Albania he will be arrested because of his
political beliefs.
The eight Department of State Country Reports, Human
Rights World Reports and Amnesty International Reports that
Filja submitted in support of his motion to reopen provide
evidence that Albanian police and other authorities were
continuing persecution of those who opposed the Socialist
regime. For example:
The Government’s human rights record remained poor in
many areas; although there were some improvements in a
few areas, serious problems remain. Police beat and
otherwise abused suspects, detainees, and prisoners.
Prison conditions remained poor. The police arbitrarily
arrested and detained persons and prolonged pretrial
detention was a problem. The judiciary was inefficient,
subject to corruption and executive pressure on the
12
judiciary remained a serious problem.
U.S. Department of State, Albania, COUNTRY REPORTS
ON HUMAN RIGHTS PRACTICES - 2002.
Following a series of political crises, by mid-year Albania
entered a period of which appeared to be more stable and
inclusive governance. Nevertheless, impunity for police
abuse, failures of various government branches to uphold
the rule of law, trafficking in human beings, and
widespread violations of children’s rights continued to be
major concerns.
. . . The excessive reaction against Albania’s highest
court revealed a thin commitment to the rules of law
when political stakes are high.
. . . Albania’s executive and judicial authorities continued
to fail to combat police violence. Torture and physical
abuse of detainees were widespread and unpunished.
HUMAN RIGHTS WATCH WORLD REPORT 2003, ALBANIA,
available at http://www.hrw.org/wr2k3/europe1.html.
Several cases of torture and other serious abuse by the
Albanian police in 2001 highlighted the prevalence of
police misconduct, particularly as it concerned children
and opposition activists . . . . The DP [Democratic Party]
repeatedly protested the arrests and alleged police
beatings of participants in its political rallies, which
sometimes turned violent. Azgan Haklaj, the head of the
DP branch in Tropoja, was brutally assaulted by the
special police in January 2001 after having been arrested
for his alleged role in a November 2000 attack on the
Tropoja police station.
HUMAN RIGHTS WATCH WORLD REPORT 2002, ALBANIA,
available at http://www.hrw.org/wr2k2/europe1.html.
Detainees, including children, continued to be frequently
ill-treated and sometimes tortured during arrest and in
13
police custody, usually to force confessions. Judicial
proceedings against police officers accused of ill-
treatment were rare.
AMNESTY INTERNATIONAL, ALBANIA COVERING EVENTS FROM
JANUARY - DECEMBER 2002.
Although the record contains evidence that even during
the years of Democratic Party rule, Socialist Party supporters
within the police and special police continued to attack
Democratic Party activists, the situation became dramatically
more dangerous for those activists when the Socialist Party
reestablished control of the entire governmental structure in
1997. This, of course, is the changed country condition upon
which Filja bases his motion to reopen.
The supporting papers seek to show why Filja’s initial
application for asylum at the June 28, 1996 hearing failed fully
to develop the important background information concerning the
longstanding persecution of Filja’s family, Filja’s own
participation in the Democratic Party activities, and the
continuing threats made against Filja’s wife and son. The reason
given is the ineffective representation provided to Filja by his
then counsel.
In his many papers Filja presented a host of errors
committed by former counsel: i) he failed to advance the facts
Filja recounted to him concerning his family’s long-standing
persecution and his political activity on behalf of the Democratic
Party, neither correcting and supplementing Filja’s form asylum
affidavit nor preparing to bring out full testimony at the hearing;
ii) he informed Filja that he did not have a case because the
Democratic Party was then in power, failing to comprehend that
even though the Democratic Party was in power the Socialists
had strong support within the police forces and were killing
opposition persons to get back in power; iii) he failed to
recognize that Filja feared persecution by the Socialist Party and
police whom the Democratic Party had been, and would be,
unable to control; iv) he failed to set forth the specific
mistreatment Filja’s close relatives – wife, son, father,
grandfather and maternal great-aunt – had received as a result of
14
being associated with the Democratic Party; v) he failed to
develop the fact that his brother-in-law, Gene Dingu, was
attacked outside the home where Luljeta Filja and the son were
living; vi) he failed to call available witnesses, including Filja’s
wife, who was sitting outside the hearing room, who could have
provided detail and corroboration to Filja’s account; and vii) he
failed to provide State Department Country Reports and reports
of human rights organizations that describe the political situation
in Albania and ongoing persecution of political dissidents such
as Filja.
D. The BIA’s Denial of the Motion: On February 23,
2004, the BIA disposed of Filja’s motion to reopen and the
record offered in its support. It noted that the motion was
received on October 9, 2003 and held it was untimely because it
was not filed within 90 days of the BIA’s March 19, 2002
opinion, the final administrative order in his case, citing 8 C.F.R.
§1003.2(c). The BIA rejected Filja’s argument that he came
within the exception to the 90-day rule because there had been
changes in conditions in Albania, stating, “we note that the
asserted changes, including the election of Socialist Party
members to the government, occurred prior to our decision in
March 2002, and as such, this evidence even if deemed material
was available and could have been discovered or presented at
that time. See 8 C.F.R. § 1003.2(c)(3)(ii).”
The BIA rejected Filja’s argument that the time limitation
for the filing of the motion should be tolled because he was
deprived of due process as a consequence of ineffective
assistance of his former counsel. The BIA stated that “while the
respondent appears to have complied with requirements set forth
in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) he has
failed to demonstrate that his former counsel’s performance was
so inadequate that it prejudiced the outcome of proceedings.”3
3
In Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL
235454 (BIA 1988), aff’d,
857 F.2d 10 (1st Cir. 1988), the BIA
laid out a three-step procedure for establishing “egregious”
ineffective assistance that would justify reopening: i) the
petitioner must submit an affidavit setting forth the agreement
15
The BIA set forth the legal principles governing relief
under the CAT and held that Filja failed to demonstrate prima
facie eligibility for its protection because “[t]he evidence of
record fails to indicate that it is more likely than not that
respondent will face torture upon his return to Albania,” and,
further, “his arguments, in substantial part, consist of the same
arguments previously presented in support of his applications for
asylum and withholding of deportation which were denied both
by the Immigration Judge and by the Board.”
On March 22, 2004, Filja filed with the BIA a motion to
reconsider and/or request for en banc review. The BIA denied
the motion to reconsider. The Filjas now petition for review of
the BIA’s February 23, 2004 order denying Filja’s motion to
reopen.
with prior counsel with respect to the actions to be taken and
what counsel did or did not represent to the petitioner in this
regard; ii) before allegations of ineffective assistance of counsel
are presented to the BIA, former counsel must be informed of
the allegations and given an opportunity to respond; iii) if it is
asserted that prior counsel’s handling of the case involved a
violation of ethical or legal responsibilities, petitioner’s motion
should reflect whether a complaint has been filed with
appropriate disciplinary authorities, and, if not, why not. We,
like most Courts of Appeal, have given general approval to the
Lozada approach to claims of ineffective assistance of counsel.
See, Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001).
16
II. Jurisdiction and Standard of Review
We have jurisdiction of the Filjas’ petition under 8 U.S.C.
§ 1252, which grants federal courts of appeals jurisdiction to
review final orders of the BIA. We must uphold the BIA’s
factual findings if they are “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992). We review the
BIA’s conclusions of law de novo.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.
2001), and review its underlying factual findings related to the
motion for substantial evidence. Sevoian v. Ashcroft,
290 F.3d
166, 170 (3d Cir. 2002). The BIA’s denial of a motion to reopen
may only be reversed if it is “arbitrary, irrational, or contrary to
law.”
Id. at 174 (internal quotation marks omitted).
III. Discussion
A. Timeliness of Petition to Reopen: The IJ held the
Filjas’ asylum hearing on June 28, 1996, denying asylum and
withholding of deportation on January 16, 1997. In June 1997,
the Socialist Party returned to power in Albania. On March 19,
2002, the BIA dismissed the Filjas’ appeal. On October 9, 2003,
the Filjas moved under 8 C.F.R. § 1003.2(c)(3)(ii) to reopen and
to remand to the IJ to reapply for asylum and withholding of
deportation due to changed country conditions and to apply for
relief under the CAT. The BIA held that the motion to reopen
was untimely, interpreting § 1003.2(c) as requiring that,
although the country conditions in Albania had changed
subsequent to the date of the IJ’s 1997 decision, the motion
should have been made prior to the BIA’s March 19, 2002
decision.
Under the applicable regulation, a motion to reopen
removal proceedings “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.” 8 C.F.R. §
1003.2(c)(2). Excepted from this time limitation set forth in
paragraph (c)(2) are motions “to reopen proceedings: . . . (ii) [t]o
17
apply or reapply for asylum or withholding of deportation based
on changed circumstances arising in the country of nationality . .
., if such evidence is material and was not available and could
not have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii) (emphasis added). This regulation
implements 8 U.S.C. § 1229a(c )(7)C)(ii), which excepts the
time limitation “if such evidence is material and was not
available and would not have been discovered or presented at the
previous proceeding” (emphasis added).
Interpreting the regulation, the BIA held that the Filjas’
motion to reopen was untimely because the changed country
conditions were known at the time of the “previous hearing”
before the BIA, namely, its March 19, 2002 decision. The BIA’s
construction of the statute is entitled to deference and must be
accepted by the Court if it is based upon a permissible
construction of the statute. Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984);
see INS v. Aguirre-Aguirre,
526 U.S. 415, 424-25 (1990);
Abdulai v. Ashcroft,
239 F.3d 542, 551 (3d Cir. 2001).
The language of the statute is ambiguous, stating that the
changed country conditions must not have been presentable at
the “previous proceeding.” It does not specify whether the
“previous proceeding” is the application heard by the IJ or the
appeal heard by the BIA. The government relies upon Chevron
to support its contention that the Court must accept the BIA’s
contention that the statutory language, “previous proceeding,”
and the regulatory language, “previous hearing,” encompass the
appellate proceeding before the BIA, arguing in its brief that
“[s]ince any application to re-open a case once it has been taken
to the BIA must be made to the BIA, it is certainly permissible to
interpret ‘previous proceeding’ in the context of a motion to re-
open a BIA case to refer to the previous appeal to the BIA.”
Two considerations lead to the conclusion that the
government’s argument and the BIA’s holding are flawed. First,
the structure that the statute and regulations create for original
hearings and appellate review of asylum and withholding of
removal applications permits evidentiary material to be
presented only at IJ hearings and not on BIA review. Second,
18
when 8 C.F.R. § 1003.2(c)(3)(ii) is construed in conjunction
with other § 1003 regulations, the words “previous hearing” can
only refer to the proceedings before the IJ, and not to the
proceedings before the BIA.
We examine first the statutory and regulatory structure
established for IJ hearing and BIA review on appeal of motions
for asylum and withholding of removal. It is the IJ who has the
statutory authority to “conduct proceedings for deciding the
inadmissability or deportability of an alien,” 8 U.S.C. §
1229a(a)(1), during the course of which he “shall administer
oaths, receive evidence, and interrogate, examine, and cross-
examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1).
Appellate review of IJ decisions is conferred upon the
BIA. 8 C.F.R. § 1003.1(b). Under the regulations “[t]he Board
will not engage in de novo review of findings of fact determined
by an immigration judge,” 8 C.F.R. § 1003.1(d)(3)(i), and “the
Board will not engage in factfinding in the course of deciding
appeals. A party asserting that the Board cannot properly
resolve an appeal without further factfinding must file a motion
for remand. If further factfinding is needed in a particular case,
the Board may remand the proceeding to the immigration judge.
. . .” 8 C.F.R. § 1003.1(d)(3)(iv).
The Filjas could not have presented evidence of changed
country conditions to the BIA on their appeal on the merits of
the IJ’s decision. The BIA faults the Filjas for not filing their
motion within an artificial time period that was measured by the
BIA’s issuance of its decision in a proceeding that had nothing
to do with, and, in fact, precluded, new evidence. This suggests
that the BIA’s interpretation of § 1003.2(c)(3)(ii) was
unreasonable.
If one traces the labyrinthine path of the applicable
regulations, one can only conclude that “previous hearing,” as
used in § 1003.2(c)(3)(ii), refers to the hearing before the IJ,
which is totally consistent with the statutory and regulatory
factfinding procedures.
The statute authorizes motions to reopen removal
19
proceedings, 8 U.S.C. § 1229a(c)(7), and provides that “[t]he
motion to reopen shall state the new facts that will be proven at a
hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.” 8 U.S.C.
§ 1229a(c)(7)(B). A successful motion to reopen results in a
hearing, and an IJ must conduct that hearing.
The usual deadline for filing a motion to reopen is 90
days after entry of a final order of removal, 8 U.S.C. §
1229a(c)(7)(C)(i), except that “[t]here is no time limit on the
filing of a motion to reopen if the basis of the motion is to apply
for relief under sections 1158 [asylum] or 1231(b)(3)
[withholding deportation] of this title and is based on changed
country conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence is
material and was not available and would not have been
discovered or presented at the previous proceeding.” 8 U.S.C. §
1229a(c)(7)(C)(ii). Because the only proceeding at which new
evidentiary material could be presented is a hearing before the
IJ, the reference to “previous proceeding” in this statutory
provision must have been to the hearing before the IJ.
There is a significant difference in the regulatory
provisions that govern motions to reopen proceedings before an
IJ4 and the regulatory provisions that govern motions to reopen
4
8 C.F.R. § 1003.23(b), dealing with motions to reopen
before the Immigration Judge, provides in relevant part:
(1) . . . A motion to reopen must be filed
within 90 days of entry of a final administrative
order of removal, deportation, or exclusion, or on
or before September 30, 1996, whichever is later . .
..
(3) Motion to reopen. A motion to reopen
proceedings shall state the new facts that will be
proven at a hearing to be held if the motion is
granted and shall be supported by affidavits and
other evidentiary material.
20
proceedings before the BIA.5 Each set of regulations establishes
(4) Exceptions to filing deadlines - (i) Asylum and
withholding of removal. The time and numerical
limitations set forth in paragraph (b)(1) of this section
shall not apply if the basis of the motion is to apply for
asylum under Section 208 of the Act or withholding of
removal under section 241(b)(3) of the Act or
withholding of removal under the Convention Against
Torture, and is based on changed country conditions
arising in the country of nationality or the country to
which removal has been ordered, if such evidence is
material and was not available and could not have been
discovered or presented at the previous proceeding.
(emphasis added).
5
8 C.F.R. § 1003.2(c), dealing with motions to reopen
before the BIA, provides in relevant part:
(2) . . . 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.
(3) . . . The time and numerical limitations
set forth in paragraph (c)(2) of this section shall
not apply to a motion to reopen proceedings:
....
(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[.]
21
a 90-day time limit to file such motions; each contains the
changed country conditions exception. The significant
difference is that in the case of motions to reopen before the IJ
the exception applies if the new evidence was not available “at
the previous proceeding.” The “previous proceeding” can only
have been the hearing before the IJ. In the case of motions to
reopen before the BIA the exception applies if the new evidence
was not available “at the previous hearing.” The words “at the
previous hearing” were substituted for the statutory and IJ
regulatory language - “at the previous proceeding.” There is no
“hearing” in the usual sense of the word in proceedings before
the BIA, and the substitution of the word “hearing” for
“proceeding” recognizes that the only place the alien could have
presented evidence of changed country conditions was before the
IJ.
Thus it was unreasonable for the BIA, referring to the
Filjas’ motion, to hold that the “changes . . . occurred prior to
our decision in March 2002, and as such, this evidence even if
deemed material was available and could have been discovered
or presented at that time.” The BIA’s interpretation of “previous
hearing” to refer to the proceeding before it rather than to the
proceeding before the IJ does violence to the language of 8
C.F.R. § 1003.2(c)(3)(ii) when it is construed in conjunction
with the language of related statutory and regulatory provisions,
and it is inconsistent with the regulatory structure for fact finding
and appellate review established in 8 C.F.R. § 1003.0, et seq.
The BIA committed an error of law when it held that the Filjas’
motion to reopen and remand was time-barred.6 We must
(emphasis added).
6
In an unpublished opinion, Siddiqui v. INS, 33 Fed.
Appx. 217, 219 (7th Cir. 2002), the Court of Appeals for the
Seventh Circuit held that the BIA did not abuse its discretion in
using the date of its own decision as the date of Siddiqui’s
“previous hearing” under 8 C.F.R. § 3.2(c)(3)(ii). The opinion
contained no analysis of the statutory and regulatory language,
nor did it discuss whether “previous hearing” or “previous
22
determine whether its alternative reasons to deny the Filjas’
motion can be sustained.
As we noted in Sevoian v. Ashcroft, 290 F.3d 166, 169-
74 (3d Cir. 2002), the Supreme Court has identified three
principal grounds on which the IJ or BIA may deny a motion to
reopen immigration proceedings: i) it may hold that the movant
has failed to establish a prima facie case for the relief sought; ii)
it may hold that the movant has failed to introduce previously
unavailable material evidence that justified reopening; or iii) in
cases in which the ultimate grant of relief being sought is
discretionary (asylum, suspension of deportation, and adjustment
of status, but not withholding of deportation) the BIA can pass
by the first two bases for denial and determine that even if they
were met, the movant would not be entitled to the discretionary
grant of relief. INS v. Doherty,
502 U.S. 314, 323 (1992); INS
v. Abudu,
485 U.S. 94, 105 (1988)7.
proceeding” referred to the IJ or BIA proceeding or to both of
them.
7
We do not suggest that in an appropriate case the BIA,
in its discretion, could not deny a motion to reopen that is
exempted from the 90-day time limitation by virtue of 8 C.F.R. §
1003.2(c)(3)(ii) on the equitable ground that the moving party
had unreasonably delayed filing the motion. In the present case,
while their appeal was pending, the Filjas theoretically could
have filed a motion to reopen and return their case to the IJ.
That was not, however, a practical course of action for them.
Unbeknownst to them at the time, the attorney representing them
was providing totally ineffective assistance. Further, when the
Filjas obtained effective counsel it was necessary to expend
substantial time and effort to secure evidence required to support
the motion based on the changed country conditions. Witnesses
had to be tracked down in different parts of the United States and
in Albania, and affidavits had to be obtained from them. There
had to be obtained from Albania certified death certificates,
certificates of executions, and certificates of prison sentences, all
constituting evidence of the persecution to which the Socialists
had subjected the Filja family. These circumstances precluded a
23
The Filjas advanced three grounds for their motion to
reopen. The first, and most critical ground, was that changes in
country conditions in Albania support Filja’s fear of facing
persecution in his home country. The second was ineffective
assistance of counsel. The third was Filja’s claim that due to a
change in the law he was entitled to relief under the CAT not
previously available to him.
B. Changed Country Conditions: The BIA rejected the
first ground because, it held, the motion was untimely. As a
result of this legal error it made no inquiry whether Filja had
established a prima facie case for the relief sought. In light of its
timeliness ruling it had no need to examine the voluminous
record that Filja filed in support of his motion.
The contents of the record that the BIA failed to consider
and apply to the changed country conditions claim are described
in some detail above. It included Filja’s and his wife’s affidavits
and evidence of past persecution of Filja’s family by the
Communists or their successors, the Socialists. It included
affidavits of persons having personal knowledge of the family’s
past persecution and Filja’s activities on behalf of the
Democratic Party. The record also included eight reports of the
State Department, Human Rights Watch, and Amnesty
International. It included significant evidence of the
ineffectiveness of prior counsel. The likelihood of future
persecution claim rested not only upon Filja’s and his family’s
political orientation and activities, but also rested upon a long
history of attacks upon the entire family because of its close
association with the rulers of Albania before the Communists
took over.
Although at the time of the IJ hearing the Democratic
Party was in power, adherents of the Socialist Party still held
powerful positions in the police and secret police departments
and were in a position to threaten their opponents. When in
1997 the Socialist Party returned to power the position of those
motion to reopen upon the occurrence of the changed political
conditions in Albania.
24
supporting the Democratic Party became more precarious. This
Court is not totally unfamiliar with conditions in Albania. See
Caushi v. Att’y Gen., 436 F.3d 220 (3d Cir. 2006).
C. Ineffective Assistance of Counsel: The claim of
ineffective assistance of counsel was supported by the same
voluminous record that was submitted in connection with the
changes in country conditions claim. The BIA conceded that
Filja appeared to have complied with the procedural
requirements for bringing such a claim set forth in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988); aff’d, 857 F.2d 10 (1st
Cir. 1988). The BIA opinion contained the formulaic statement
that “we have carefully reviewed the record.” Then, in the one
paragraph devoted to this issue, the BIA’s only substantive
finding was that Filja “has failed to demonstrate that his former
counsel’s performance was so inadequate that it prejudiced the
outcome of the proceedings.”
The BIA is not required to “write an exegesis on every
contention. What is required is merely that it consider the issues
raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not
merely reacted.” Mansour v. I.N.S., 230 F.3d 902, 908 (7th Cir.
2000) (internal quotations omitted). The BIA must at least show
that it has reviewed the record and grasped the movant’s claims.
See
Sevoian, 290 F.3d at 178. Here, although the BIA stated
that it “carefully reviewed the record,” there is nothing in its one
paragraph devoted to the ineffective assistance of counsel claim
that is suggestive of such a review or that it grasped Filja’s
serious allegations supporting his ineffective assistance claim.
This inadequate explanation does not support the BIA’s
decision.8
8
The government contends that we should not consider
Filja’s ineffective assistance of counsel contention because it
was not raised in his opening brief. This claim, however, is
inextricably intertwined with the substance of the changed
country conditions claim. The significance of the Socialist
Party’s return to power is emphasized by the critical evidence
which previous counsel failed to develop. The government has
25
Thus the BIA, because of its mistaken view of the time
limits imposed by 8 C.F.R. § 1003.2(c)(3)(ii), did not appear to
have considered the record at all when it decided Filja’s claim
based on changed country conditions. Its decision on Filja’s
ineffective assistance of counsel claim evidences no analysis of
the record and is so deficient it cannot survive review.
C. CAT Claim: Filja’s motion to reopen also sought
relief under Article 3 of the CAT, which forbids a State Party
from forcibly returning a person to a country where there are
“substantial grounds for believing that he would be in danger of
being subjected to torture.” This relief was not available to Filja
when he appeared before the IJ on June 28, 1996, as Congress
did not pass legislation implementing the United States’
obligations under the CAT until 1998 with the Foreign Affairs
Reform and Restructuring Act (“FARRA”). See Pub. L. No.
105-227, Div. G., Title XXII, § 2242, 112 Stat. 2681, 2681-822,
codified as note to 8 U.S.C. § 1231. Section 2242(b), which
substantively implements the CAT, directed “the heads of the
appropriate agencies” to “prescribe regulations to implement the
obligations of the United States under Article 3 of the
[Convention], subject to any reservations, understandings,
declarations, and provisions contained in the United States
Senate resolution of ratification of the Convention.” See 8
U.S.C. § 1231 note.9
Resolving Filja’s CAT claim the BIA stated:
had to address this failure throughout the proceedings before the
BIA and in this Court. It does not prejudice the government, and
consideration of this issue is necessary to provide full justice to
the Filjas. See, e.g., McCarthy v. SEC, 406 F.3d 179, 186 (2d
Cir. 2005) (“We are inclined to overlook a party’s failure to
properly raise an issue on appeal if manifest injustice would
otherwise result.”).
9
For a detailed account of the United Nations’s adoption
of the CAT and its ratification by the United States, see Auguste
v. Ridge, 395 F.3d 123 (3d Cir. 2005).
26
We find that respondent has failed to
demonstrate prima facie eligibility for protection
pursuant to the Convention Against Torture. The
evidence of record fails to indicate that it is more
likely than not that respondent will face torture
upon return to Albania.
The BIA’s rationale for this conclusion was that “. .
.[Filja’s] arguments, in substantial part, consist of the same
arguments previously presented in support of his application for
asylum and withholding of deportation which were denied both
by the Immigration Judge and by the Board.” The BIA failed to
recognize that the situation in Albania presented to the IJ and
considered by the BIA on appeal was transformed dramatically
by the 1997 Socialist Party return to power, and that, therefore,
Filja’s claims for relief had to be reviewed in this new light.
Perhaps the BIA’s error was a result of its original error in
holding that the motion based on changed country conditions
was untimely and that, therefore, the evidence submitted in its
support need not be considered. On the facts of this case, the
BIA’s discussion is insufficient, as is the faulty rationale that
followed it.
The government argues that, despite any substantive error
the BIA may have made when ruling on the CAT claim, the
motion to reopen based on that claim was untimely, requiring its
dismissal. Specifically, 8 C.F.R. § 208.18(b)(1) states:
(1) Aliens in proceedings on or after March 22,
1999. An alien who is in exclusion, deportation, or
removal proceedings on or after March 22, 1999
may apply for withholding of removal under §
208.16(c).10
As the government notes, the Filjas were in removal
proceedings after March 22, 1999, which continued until the
BIA decision of March 19, 2002. The government further notes
10
Section 208.17(a) governs deferral of removal under
the CAT.
27
that the changed country conditions upon which the Filjas rely
occurred in June of 1997. The government contends that the
delay in applying for CAT relief from March 22, 1999 to
October 9, 2003, should bar the Filjas from seeking CAT relief
in connection with their motion to reopen.
Neither the regulations nor equitable considerations
support the government’s position. Legislation implementing
the United States’s obligations under the CAT was enacted in
1998, after the IJ’s June 28, 1996 hearing and after the IJ’s June
1997 opinion. Appropriate regulations were adopted thereafter
while the Filjas’ appeal was pending.
Under 8 C.F.R. § 208.18(b) aliens in removal proceedings
after March 22, 1999 may apply for withholding of removal
under the CAT. If a CAT application is incorporated in a motion
to reopen, the 90-day limit on such motions set forth in 8 C.F.R.
§ 1003.2(c)(2) is trumped by the changed country conditions
provision of subsection (c)(3)(ii).
Thus the BIA’s decision on the Filjas’ CAT ground for
reopening fails to demonstrate that the BIA either reviewed the
record or grasped the Filjas’ claim. The Filjas were not time-
barred from bringing that claim.
IV. Summary
We review the denial of a motion to reopen for abuse of
discretion. INS v. Doherty, 502 U.S. at 323. A denial of a
motion to reopen will be overturned only if it is “arbitrary,
irrational or contrary to law.” Tipu v. INS,
20 F.3d 580, 582 (3d
Cir. 1994) (internal quotations omitted). The BIA’s holding that
the Filjas’ claim for relief based on changed country conditions
was time-barred is contrary to law. The BIA’s decision denying
the Filjas’ claims for relief based on ineffective assistance of
counsel and based on entitlement to relief under the CAT was
arbitrary and irrational, and thus an abuse of discretion. It failed
to demonstrate any support in the record for its conclusions, and
it did not address the serious contentions that the Filjas
advanced.
28
V. Conclusion
We grant the Filjas’ petition for review and vacate the
BIA’s February 23, 2004, decision denying the Filjas’ motion to
reopen. Although the evidence submitted in support of the
motion to reopen provides strong support for granting the motion
to remand the case to an IJ for consideration of the Filjas’ claims
for relief in the light of that evidence, this is a determination that
the BIA should make in the first instance. Consequently, we
will grant the petition and remand the case to the BIA for further
proceedings consistent with this opinion.
29
