United States Court of Appeals
For the First Circuit
No. 04-1108
JELENA VLADIMIR OREHHOVA; VALDEK OREHHOV;
ANNE OREHHOVA; and ALEKSANDR SERDJUK,
Petitioners,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alexander Lumelsky and Lumelsky & Mogilevich, LLP on brief for
petitioners.
Peter D. Keisler, Assistant Attorney General, David V. Bernal,
Assistant Director, and Ernesto H. Molina, Jr., Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
July 21, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzales for John Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
LIPEZ, Circuit Judge. Petitioners, a Russian Estonian
family, seek review of a Board of Immigration Appeals ("BIA")
decision denying their motion to reopen removal proceedings because
of ineffective assistance of counsel. Detecting no abuse of
discretion in the BIA's decision, we affirm.
I.
We recount the facts as contained in the administrative
record. See 8 U.S.C. § 1252(b)(4)(A). Petitioners Jelena Vladimir
Orehhova ("Orehhova"), her husband Valdek Orehhov, and their seven-
year-old daughter Anne Orehhova entered the United States as non-
immigrant visitors from Estonia in March 1999. Orehhova's sixteen-
year-old son from a previous marriage, Petitioner Aleksandr
Serdjuk, followed in June 1999. In September 1999, Petitioners
retained an attorney to assist them in obtaining a grant of asylum.
In January 2000, through counsel and with Orehhova as the lead
applicant, Petitioners filed asylum applications with the
Immigration and Naturalization Service ("INS"), as it was known at
the time.1
In her asylum application, Orehhova stated that in March
1999 she had been fired from her office job in Estonia, which she
had held for ten years, "solely because of [her] nationality." She
explained that "the Estonian government treats [her] as a Russian"
1
In March 2003 the INS was reorganized as the Bureau of
Immigration and Customs Enforcement ("BICE") and its relevant
functions transferred to the Department of Homeland Security.
-2-
because her parents moved from Russia to Estonia after 1940.
Orehhova stated that "[a]s the economy grew worse and worse, more
and more 'Russians' were forced out of their jobs and replaced by
native Estonians." She also stated that her husband had been fired
from his job at a railroad station and her son was prevented from
attending a local music school. The reason for these incidents,
according to the box checked off on the application, was
"Nationality."
In March 2000, Petitioners' asylum applications were
denied, and the INS commenced removal proceedings against them on
the ground that Petitioners were nonimmigrants who had remained in
the United States beyond the time permitted. 8 U.S.C.
§ 1227(a)(1)(B). Petitioners conceded removability but sought
relief in the form of asylum, withholding of removal, and in the
alternative, voluntary departure.
Each of the petitioners (except Anne Orehhova), with the
assistance of counsel, testified before an immigration judge ("IJ")
in support of their asylum applications by describing their reasons
for fearing persecution because of their Russian heritage if they
returned to Estonia. Petitioners also introduced recent country
reports prepared by the U.S. State Department documenting
conditions in Estonia during 1998 and 1999. Orehhova testified
that in 1988, after her first husband died, she moved from Russia
to Estonia where her mother and sister live, and that she was able
-3-
to find a job working at the mayor's office because she had several
years of job experience. She worked in the same office for
different mayors for nearly ten years, from June 1989 through
February 1999. Toward the end of her tenure, however, high
proficiency in the Estonian language (instead of Russian) became a
requirement for many jobs, and Orehhova, who speaks primarily
Russian, began to experience harassment at her job. In 1998 she
began inquiring about other available jobs, but found none. On
February 28, 1999, Orehhova was fired from her job because of her
Russian ethnicity, and she and her husband and daughter immediately
departed the country, leaving their apartment, which Orehhova still
owns, behind.
Orehhova's husband, Valdek Orehhov, testified that he had
experienced job discrimination because of anti-Russian sentiment,
even though he is Estonian, and corroborated his wife's testimony
about her fears of harm at her workplace. Orehhova's son,
Aleksandr Serdjuk, testified that he had not been permitted to
attend a music school in his hometown because of his Russian
heritage and that he had to go to a larger city, Tallinn, in order
to attend music school. Serdjuk testified that in Tallinn he had
been physically assaulted twice by Estonians who disparaged him for
being Russian. He also testified that an apartment he rented with
another Russian Estonian had been set on fire. Serdjuk stated that
-4-
he had stayed in Estonia until June 1999 in order to complete the
academic year at his school.
On September 18, 2000, the IJ denied Petitioners'
applications for asylum and withholding of removal, but granted
voluntary departure for each of the petitioners except Serdjuk, who
had been present in the United States for less than a year before
the commencement of removal proceedings. See 8 U.S.C. § 1229c(b).
The IJ found that Orehhova, her husband, and her son had "testified
truthfully," and that all three had "suffered forms of harassment,
discrimination, [and] recrimination on account of their ethnicity."
However, the IJ concluded that "the degree of harm to which they
were exposed prior to their [most recent] trip to the United States
and that which they have established will be threatened if they
return at this time does not []rise to the level required for [a]
finding of persecution."2 Petitioners appealed the IJ's decision
2
As we explained in Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st
Cir. 2004):
An asylum applicant bears the burden of
establishing that he or she meets the
statutory definition of a refugee and is
therefore eligible for asylum. 8 C.F.R. §
208.13(a). Applicants may meet this burden in
one of two ways. First, an applicant
qualifies as a refugee if he or she
demonstrates a well-founded fear of
persecution on account of race, religion,
nationality, membership in a particular social
group, or political opinion. 8 C.F.R.
§ 208.13(b). Alternatively, the applicant is
entitled to a presumption of a well-founded
fear of persecution if he or she establishes
-5-
to the BIA, which summarily affirmed the decision on February 13,
2003. The BIA permitted Petitioners, including Serdjuk, an
additional 30-day period within which to undertake voluntary
departure.
Petitioners neither departed the country nor filed a
petition for review of the BIA's decision within 30 days. See 8
U.S.C. § 1252(b)(1) ("The petition for review must be filed not
later than 30 days after the date of the final order of removal.").
However, on May 13, 2003, through new counsel, they filed a timely
motion to reopen before the BIA, see 8 CFR 1003.2(c)(2) (permitting
motion to reopen within 90 days of final administrative decision),
in which they alleged both that their former counsel had provided
ineffective assistance amounting to a violation of their Fifth
Amendment right to due process, and that changed country conditions
in Estonia warranted reopening of their asylum case. On December
23, 2003, the BIA denied the motion to reopen on both grounds.
In its decision, the BIA first found that Petitioners had
"met the technical requirements" for raising a claim of ineffective
assistance of counsel before the BIA as set forth in Matter of
past persecution on account of one of the five
statutory grounds.
(citation omitted). "In order to present a viable asylum claim,
the applicant must demonstrate both an objectively reasonable and
a subjective fear of persecution." Wang v. Ashcroft, 367 F.3d 25,
28 (1st Cir. 2004) (emphasis omitted).
-6-
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Such a claim must be
supported
by 1) an affidavit setting forth "in detail
the agreement that was entered into with
former counsel with respect to the actions to
be taken," as well as any representations made
by counsel to the alien; 2) proof that the
movant has informed former counsel of the
allegations in writing, as well as any
response received; and 3) a statement
detailing "whether a complaint has been filed
with appropriate disciplinary authorities
regarding such representation, and if not, why
not."
Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001) (quoting Matter of
Lozada, 19 I. & N. Dec. at 639). Based on the administrative
record and the supplemental Lozada materials, however, the BIA
concluded that
we cannot find from the record that
[Petitioners'] former counsel's actions were
unreasonable. See former counsel's statement
regarding motion. It appears that the former
counsel represented [Petitioners] in a
diligent manner. Furthermore, [Petitioners]
have failed to demonstrate prejudice. The
record reveals that the acts suffered by the
lead [applicant] constitute discrimination and
do not rise to the level of persecution.
(citation omitted). The BIA also found that the documents
proffered by Petitioners in their motion to reopen in support of
their claim of changed country conditions did not justify reopening
"on the basis of 'circumstances that have arisen subsequent to the
hearing.' 8 C.F.R. § 1003.2(c)(1)." Petitioners timely filed a
petition for review of that portion of the BIA's decision denying
-7-
their motion to reopen on the ground of ineffective assistance of
counsel.
II.
We review a BIA decision to deny a motion to reopen only
for abuse of discretion. Maindrond v. Ashcroft, 385 F.3d 98, 100
(1st Cir. 2004). "An abuse of discretion will be found where the
BIA misinterprets the law, or acts either arbitrarily or
capriciously." Wang, 367 F.3d at 27. Within this framework, we
review the BIA's legal conclusions de novo, "according due weight
to the BIA's expertise in construing the statutory framework that
it administers." Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir.
2004). Any error of law "comprises an abuse of discretion." Id.
Motions to reopen are permitted only where they present "evidence"
that is "material and was not available and could not have been
discovered or presented at the former hearing." 8 C.F.R. §
1003.2(c)(1). Claims of ineffective assistance of counsel satisfy
this requirement. See Saakian, 252 F.3d at 25.
While the Sixth Amendment right to counsel does not apply
in deportation proceedings, which are civil rather than criminal,
appellate courts have "recognized that there is a due process
violation if the proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case." Bernal-
Vallejo v. INS, 195 F.3d 56, 63 (1st Cir. 1999); see id. at 63-64
(collecting cases). "It is generally also expected that the alien
-8-
show at least a reasonable probability of prejudice." Saakian, 252
F.3d at 25; see also Toban v. Ashcroft, 385 F.3d 40, 46 (1st Cir.
2004) (alien alleging denial of due process must show prejudice in
all but the most "extreme case[s]").
The BIA did not abuse its discretion in concluding that
"former counsel represented [Petitioners] in a diligent manner."
Even a cursory review of the record reveals that Petitioners had a
fair opportunity to present their case for asylum and withholding
of removal to the IJ: they provided extensive testimony in response
to direct examination by counsel and questioning by the IJ, who
then issued a reasoned decision.3 The most substantial of
Petitioners' allegations is that their former attorney's lack of
familiarity with the plight of Russians in post-Soviet era Estonia
led to his decision to pursue a legal theory that was doomed to
failure -- namely, as stated in counsel's affidavit, the theory
"that this family could not get any job anywhere in Estonia, so
that their treatment was persecution." Instead, Petitioners assert,
counsel should have recognized and employed a broader theory of
persecution by arguing that government policies consciously
3
While Petitioners assign a host of specific errors to their
former counsel's performance, both before and during the hearings,
the bulk of these allegations amount to no more than "garden-
variety claims that counsel should have handled matters somewhat
differently and . . . do not even approach a showing that
[Petitioners have] been deprived of a constitutionally adequate
opportunity to make [their] case." Hernandez v. Reno, 238 F.3d 50,
56 (1st Cir. 2004) (affirming denial of alien's petition for writ
of habeas corpus on ineffectiveness grounds).
-9-
designed to "secure an Estonian national identity," including but
not limited to the imposition of strict Estonian language
requirements for employment, operate to persecute Russian Estonians
in order to push them out of Estonia.4
Even if Petitioners could somehow establish that former
counsel "prevented [them] from reasonably presenting" this slightly
recast theory of persecution, Bernal-Vallejo, 195 F.3d at 63, the
BIA acted well within its discretion in denying the motion to
reopen on the ground that Petitioners suffered no prejudice as a
result.5 The record fails to "compel a reasonable inference that
[Petitioners] could prevail" on their alternate theory of
persecution. Wang, 367 F.3d at 28. The IJ had before her country
reports released by the U.S. Department of State for 1998 and 1999,
4
Other negative effects of Estonian government policies
identified by Petitioners include: (1) "political consequences,"
such as "non-representative governance of ethnic Russian
Estonians"; (2) "social consequences," such as "herding and
residence restriction" to areas of Estonia bordering Russia; and
(3) "intellectual and education consequences," such as
"restrictions" on "attainment of certain levels of education
for . . . overall well[-]being in every day Estonian life."
Petitioners also cite the negative effects of Estonia's "historical
background," which they claim sheds light on "[the] Estonian
government's major motive [in] enacting such policies," namely, the
government's view of decades of "Communist-enforced migration [of
Russians into Estonia] as an evil perpetrated on Estonian culture,
people, language[,] and above all sovereignty."
5
Petitioners insist that if their former attorney had
adequately advanced their theory of persecution by introducing
evidence of the harmful effects of Estonian governmental policies
on Russian Estonians, they would have been "almost certain to
receive a grant of asylum." Needless to say, such a conclusory
statement does not amount to a showing of prejudice.
-10-
the most recent of which clearly documented evidence of
discrimination against Russian Estonians. Despite this evidence,
the IJ found that "the degree of harm" threatened by such
discrimination did not amount to persecution.6 Instead, the IJ
stated:
It appears from the evidence presented by
[Petitioners'] own counsel that Estonia is a
country which is wrestling with issues of
hostility and that these issues continue to
exist but that the country is attempting to
deal with this and attempting to promote and
strengthen a western type of democracy.
[Petitioners] do not appear to have been
willing to remain in Estonia, not because
their life or freedom was threatened, but
because they were facing difficulties
economically which were imposed on account of
the[ir] nationality or ethnicity.
The BIA supportably concluded that the argument and evidence
proffered by Petitioners in their motion to reopen failed to
establish a "reasonable probability of prejudice," Saakian, 252
F.3d at 25. Accordingly, we detect no abuse of discretion in the
BIA's decision to deny Petitioners' motion to reopen.
As a final matter, Petitioners ask us to consider
evidence that was not available at the time they filed their motion
to reopen with the BIA on May 13, 2003, namely, an August
8, 2003 decision of the Massachusetts Supreme Judicial Court
6
"Discrimination is not the equivalent of persecution; '[t]o
qualify as persecution, a person's experience must rise above
unpleasantness, harassment, and even basic suffering.'" Pieterson
v. Ashcroft, 364 F.3d 38, 44 (1st Cir. 2004) (citations omitted)
(alteration in original).
-11-
("SJC") disciplining their former attorney for making intentionally
deceptive statements in his application for admission to
the bar. See In re Moore, SJC-BD-2003-034, available at
http://www.mass.gov/obcbbo/bd03-034.htm (Mass. August 8, 2003)
(decision of single justice ordering disbarment), amended by In re
Moore, 812 N.E.2d 1197 (Mass. 2004) (ordering two-year suspension
from practice of law instead of disbarment). Pursuant to 8 U.S.C.
§ 1252(b)(4)(A), a court of appeals must "decide the petition only
on the administrative record on which the order of removal is
based." We note that the BIA did not decide Petitioners' motion to
reopen until December 23, 2003, several months after the SJC
rendered its decision. Petitioners did not attempt to bring the
SJC's decision to the BIA's attention by seeking to supplement the
record before the BIA while their motion to reopen was pending or
by asking the BIA to reopen the motion sua sponte after it rendered
a decision. See 8 C.F.R. § 1003.2(a) ("The Board may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision.").
The petition for review is denied. Because we lack the
authority to grant Petitioners' alternative claim for relief in the
form of reinstatement of voluntary departure, see Bocova v.
Gonzales, No. 04-2175, 2005 U.S. App. LEXIS 12421, *20-21 (1st Cir.
June 24, 2005), Petitioners' claim for such relief is dismissed.
The request for oral argument is denied.
-12-
So ordered.
-13-