Rranci v. Att'y Gen. of the U.S., (3d Cir. Aug. 22, 2008)

In sum, we hold that Petitioner satisfied the procedural requirements of Lozada. Because the BIA erred in applying the law to the undisputed facts of the case, it abused its discretion in dismissing the appeal and affirming the IJ's denial of his motion to reopen. It appears that Annex I of the United Nations Convention Against Transnational Crime would apply to witnesses in criminal proceedings, such as Petitioner, who testify about smuggling crimes. On remand, the BIA should determine in the first instance how current U.S. law reflects compliance with the Convention.

Petitioner, a citizen of Albania, initially filed for, but withdrew, his application for asylum, withholding of removal and Convention Against Torture (CAT) relief. His application for relief was based on serving as a material witness in a criminal case against the smuggler who brought him to the United States. The smuggler was an alleged chieftain in Albanian organized crime. The Department of Justice (DOJ) acknowledged in a letter that Petitioner's cooperation was an important factor in convincing the smuggler to plead guilty. In support of his claim for asylum, Petitioner stated that he feared being killed for having helped in the case against the smuggler. He also stated that he understood from the DOJ that the smuggler would be removed to Albania about two months after his conviction. Petitioner also understood from the DOJ that his own removal hearing would be waived and that he would be protected and not deported to Albania. According to Petitioner, the smuggler's brother had threatened that Petitioner would be killed upon his return to Albania.

At his scheduled asylum hearing, Petitioner's attorney entered the courtroom without Petitioner and came out recommending to Petitioner that he accepted voluntary departure in lieu of an asylum hearing. Petitioner claims that his attorney told him he would be arrested if he did not agree to leave. Petitioner stated that he was forced into the agreement to accept voluntary departure because he was afraid. The immigration judge granted voluntary departure. Petitioner, however, failed to depart and hired new counsel. New counsel moved to reopen Petitioner's case arguing that prior counsel had provided ineffective assistance of counsel. His counsel also argued that the "state-created danger doctrine" prohibited his removal to Albania. The IJ denied the motion to reopen and the BIA dismissed his appeal stating that Petitioner failed to establish that his former counsel was aware of the allegations of ineffective assistance or had an opportunity to respond to the allegations.

On review, the Third Circuit began its analysis by addressing "the state-created danger doctrine." The court noted that this doctrine imposes on the government the constitutional duty to protect a person against injuries inflicted by a third-party when the government affirmatively places the person in a position of danger the person would not otherwise have faced. The court held, however, that it has stated unequivocally that the "state-created danger doctrine" has no place in immigration jurisprudence. Kamara v. Att'y Gen. of the U.S., 420 F.3d 202, 216 (3d Cir. 2005). The court also held that the "state-created danger doctrine" was not an appropriate basis for a motion to reopen because it did not satisfy the requirement of "new facts." 8 CFR §1003.2(c)(1).

Regarding Petitioner's ineffective assistance of counsel claim, the court began its analysis by noting that the ineffective assistance of counsel in removal proceedings violates the Fifth Amendment's guarantee of due process of law, citing Fadiga v. Att'y Gen. of the U.S., 488 F.3d 142, 155 (3d Cir. 2007). The court, citing Matter of Lozada, stated that to proceed with an ineffective assistance claim, a person must: 1) provide an affidavit attesting to the relevant facts, 2) inform former counsel of the allegations and allow him an opportunity to respond, and 3) the motion should reflect whether a complaint has been filed with the appropriate disciplinary authorities and, if not, why not. 19 I&N Dec. 637, 639 (BIA 1988). The court found that Petitioner met the first prong by providing his own affidavit. As to the second prong, Petitioner's new counsel submitted a statement regarding his conversation with Petitioner's former counsel in which former counsel stated that it was in Petitioner's best interest to accept voluntary departure and denied telling Petitioner that he would be imprisoned if he did not depart voluntarily. Former counsel also conceded in the conversation that he was unaware of the "state-created danger doctrine." The court rejected the BIA's reasoning that Petitioner failed to establish the second prong of Lozada.

As to the third prong, the court held that although Petitioner lacked a compelling excuse for not pursuing disciplinary action against his former counsel, it would consider that he had satisfied the necessary procedural requirements under Lozada, noting that the third prong does not necessarily sink an ineffective assistance of counsel claim. Fadiga, 488 F.3d at 156-57. The court found that the policies underlying the third prong had been met, namely: 1) identifying, policing and correcting misconduct in the immigration bar, 2) deterring meritless claims of ineffective assistance, 3) highlighting the expected standards of lawyering for immigration lawyers, 4) reducing the need for an evidentiary hearing, and 5) avoiding collusion between counsel and clients.

In determining whether competent counsel would have acted differently and whether Petitioner was prejudiced by his prior counsel's performance, the court held that the possibility that prior counsel erred in his representation was strong and remanded the issue to the BIA. On the issue of prejudice, the court noted that the standard was not a stringent one and that Petitioner need only show a probability sufficient to undermine the outcome. The court acknowledged that Petitioner would have faced an uphill battle on his asylum and withholding claims to establish that he would be harmed on the basis of a protected ground. The key question, according to the court, was whether he could have established a CAT claim. The court held that based on his affidavit, the evidence of his cooperation in the criminal case, and the circumstantial evidence of the threats Petitioner faced, it could not say that it was implausible that Petitioner would be tortured or killed if returned to Albania. The court found that there may be a reasonable likelihood that the pervasive bribery and involvement of various Albanian officials would constitute a "willful blindness" to the tortuous conduct. The court, therefore, remanded the issue of prejudice to the BIA.

Lastly, the court looked at the issue of whether an applicant who serves as a government witness in the United States can be removed to his home country if the person he made a statement or testified against has threatened his life. The issue, one of first impression for the court, was the extent to which the United Nations Convention Against Transnational Organized Crime affects the removal of an individual such as Petitioner. The Convention was ratified and took effect in 2005. The court noted that Art. 24(1) of the Convention provides that each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation of witnesses in criminal proceedings who give testimony concerning offenses covered by the Convention. The court found that Annex I of the Convention, relating to offenses, appeared to apply to witnesses such as Petitioner. The court declined to adopt the "state created danger doctrine" as a vehicle for implementing the Convention and expressed skepticism that it would apply in this context. The court did note that the Senate report and a letter from President Bush indicated that current U.S. law already complies with the Convention. The court ordered that on remand the BIA should determine how current law reflects compliance with the specific provisions of the Convention that are relevant to Petitioner's claim.