Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-18-2002
Stojkovic v. INS
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1479
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"Stojkovic v. INS" (2002). 2002 Decisions. Paper 742.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-1479
___________
PETAR STOJKOVIC, et al.,
Petitioners
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent
___________
On Petition for Review of an Order of the Board of Immigration Appeals
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 29, 2002
Before: SLOVITER, FUENTES, Circuit Judges, and DEBEVOISE, District Judge.
(Opinion Filed: November 18, 2002)
________________________
OPINION OF THE COURT
________________________FUENTES, Circuit Judge:
The Stojkovics petition this Court to review the January 16, 2002, decision by the
Board of Immigration Appeals ("BIA") dismissing their appeal from the Immigration Judge’s
denial of their motion to reopen immigration proceedings. Because the BIA did not abuse
its discretion in dismissing the Stojkovics’ appeal, their petition for review of the BIA’s
decision is denied.
I.
Petar and Marija Stojkovic are husband and wife. They, along with their son and
daughter, Mile and Biljana, are natives and citizens of Serbia-Montenegro (formerly
Yugoslavia). They entered the United States as visitors for pleasure in 1991, based upon
valid Yugoslavian passports and United States-issued tourist visas. Their visas expired on
December 11, 1991.
On June 1, 1993, Petar Stojkovic filed an asylum application, explaining that he did
not want to return to his country because of the fighting between Serbians and ethnic
Albanians. His asylum request was denied. On April 30, 1997, the Stojkovics submitted
new asylum applications through their attorney, David Goldstein. In his second asylum
application, Petar Stojkovic explained that Serbia has embarked on a course designed to
control as much of the former Yugoslavia as possible, which involves brutal wars, repression
of ethnic minorities, and systematic human rights abuses. (A.R. at 283) He stated that he
believed that he and his family would be subject to persecution "because of [their] opposition
to the present government’s policies including waging and supporting ethnic wars . . ." Id.
On July 21, 1997, the Stojkovics and Mr. Goldstein appeared before an Immigration
Judge for an asylum hearing. Prior to the commencement of the hearing, however, the
Stojkovics withdrew their applications for asylum and instead sought voluntary departure
upon the advice of Mr. Goldstein. The Immigration Judge granted the Stojkovics the
privilege of voluntarily departing the United States on or before March 21, 1998. (A.R. at
130) Simultaneously, the Stojkovics’ application for asylum and withholding of deportation
were withdrawn and denied by the Immigration Judge due to lack of prosecution. Id.
On March 20, 1998, the Stojkovics, through a different attorney, Janusz
Andrzejewski, filed a motion to reopen the proceedings so that they could re-apply for
asylum. They claimed that, although their motion was untimely, it should be considered
because of changed country conditions in the former Yugoslavia, which present an exception
to the normal time limit for filing a motion to reopen. They also asserted ineffective
assistance of counsel by Mr. Goldstein. (A.R. at 71-129)
On April 15, 1998, the Immigration Judge issued a Decision and Order denying the
Stojkovics’ motion to reopen because: (1) the motion was untimely and did not state a claim
of changed country conditions sufficient to warrant reopening; and (2) the ineffective
assistance of counsel claim was improperly raised and could not serve as a basis for
reopening the proceedings. (A.R. at 52-53) On May 14, 1998, the Stojkovics filed a timely
notice of appeal with the BIA. In their appeal, the Stojkovics asserted that their motion to
reopen should be considered because of the changed country conditions exception to the time
bar. They also argued that the BIA’s requirements for ineffective assistance of counsel did
not apply to them because their motion was based upon a "combination of events." (A.R. at
17-20)
On January 16, 2002, the BIA dismissed the Stojkovics’ appeal from the Immigration
Judge’s Decision and Order. The BIA adopted the Immigration Judge’s finding that the
Stojkovics failed to show changed country conditions material to their circumstances. The
BIA also determined that the BIA requirements for claiming ineffective assistance of counsel
do apply to the Stojkovics’ claim. The Stojkovics filed a timely petition seeking this Court’
review of the BIA’s dismissal of their appeal.
II.
The BIA’s jurisdiction over this matter derived from 8 C.F.R. 3.1(b)(3). Because
the Stojkovics’ deportation proceedings commenced prior to April 1, 1997, appellate
jurisdiction for review of the BIA’s final decision is controlled by the former Immigration
and Nationality Act ("INA"), 8 U.S.C. 1105a.
We review the BIA’s dismissal of the Stojkovics’ appeal for abuse of discretion,
"mindful of the ’broad’ deference that the Supreme Court would have us afford." Xu Yong
Lu v. Ashcroft, et al., 259 F.3d 127, 131 (3d Cir. 2001); see also INS v. Abudu, 485 U.S. 94,
110 (1988) ("[T]he reasons for giving deference to agency decisions on petitions for
reopening or reconsideration in other administrative contexts apply with even greater force
in the INS context."); INS v. Doherty, 502 U.S. 314, 323 (1992) ("[T]he abuse-of-discretion
standard applies to motions to reopen ’regardless of the underlying basis of the alien’s
request [for relief].’"). "We have traditionally disfavored motions to reopen immigration
proceedings for the same reason we disfavor ’petitions for rehearing and motions for a new
trial on the basis of newly discovered evidence.’ . . . If anything, deportation proceedings
even more disfavored because ’as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.’" Lu, 259 F.3d at 131
(citations omitted).
III.
Motions to reopen proceedings before an Immigration Judge normally must be filed
within 90 days of the entry of the Immigration Judge’s final order of removal, deportation,
or exclusion. 8 C.F.R. 3.23(b)(1). The Immigration Judge entered his final Decision and
Order on July 21, 1997. The Stojkovics filed their motion to reopen on March 20, 1998, over
200 days after the order was entered. Their motion to reopen was, therefore, untimely. In
an effort to avoid having their motion denied as untimely, the Stojkovics made the same two
arguments to the Immigration Judge, the BIA, and now to this Court. They have argued that
their ineffective assistance of counsel claim was a sufficient basis for reopening the
proceedings. In addition, they have argued that they presented sufficient material evidence
of changed country conditions to warrant reopening. We will address their arguments in turn.
A. Ineffective Assistance of Counsel
A claim of ineffective assistance, if properly established, can constitute proper
grounds for reopening a deportation proceeding. Lu, 259 F.3d at 132. The BIA established
a three-step procedure for establishing "egregious" ineffective assistance that would justify
reopening in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988). The
Stojkovics argue that the BIA abused its discretion in applying the three-step Lozada
procedure to their claim of ineffective assistance of counsel. The Stojkovics’ argument is
meritless. We found in Lu that the BIA did not abuse its wide-ranging discretion in
establishing the three-step procedure in Lozada. 259 F.3d at 131, 133. There is nothing so
unique about the Stojkovics’ claim as to render it exempt from the Lozada procedure.
Not only is their argument about the inapplicability of the Lozada procedure meritless,
but the Stojkovics have failed to satisfy the Lozada procedure. The Lozada procedure first
establishes that an ineffective assistance motion should be supported by an affidavit attestin
to the relevant facts, including but not limited to a statement that sets forth in detail the
agreement that was entered into with former counsel. Lozada, 19 I.& N. Dec. at 638.
Second, before the allegations are presented to the BIA, former counsel must be informed
of the allegations and allowed the opportunity to respond. Id. Finally, the motion should
reflect whether a complaint has been filed with the appropriate disciplinary authorities
regarding the allegedly ineffective representation, and if not, the reason therefor. Id.
Here, the Stojkovics failed to satisfy the second and third prongs of the Lozada
procedure because they did not notify Mr. Goldstein or the proper disciplinary authority
about Mr. Goldstein’s allegedly ineffective representation in this matter. The Stojkovics
have not provided an adequate explanation for their failure to satisfy either prong.
Accordingly, the BIA did not abuse its discretion in finding the Stojkovics’ ineffective
assistance of counsel claim was not properly raised.
B. Changed Country Conditions
The INA and regulatory provisions provide that there is no time limit for filing
motions to reopen asylum claims based upon "changed country conditions arising in 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)(6); see also 8 C.F.R. 3.23(b)(4)(i). The Stojkovics argue that although
their motion to reopen the proceedings was untimely, it should have been granted under this
exception.
The Immigration Judge found that the articles submitted by the Stojkovics to support
their assertion that conditions in the former Yugoslavia had recently drastically deteriorated
were not relevant. He found that the articles "primarily pertain to the province of Kosovo,
and not to the city of Zagubica, a different part of Serbia where the [Stojkovics], as indicat
in their asylum applications, resided prior to arriving in the United States." (A.R. at 53)
Immigration Judge found that although the articles clearly demonstrate unfavorable
conditions for ethnic Albanians in Kosovo, they do not demonstrate that country conditions
had worsened in greater Serbia. The BIA adopted the Immigration Judge’s finding.
That decision was not an abuse of the BIA’s discretion. There is no reason to disturb
the findings of the Immigration Judge with respect to the relevance of the evidence submitted
by the Stojkovics because it is supported by the record. Moreover, the evidence submitted
by the Stojkovics in support of their untimely motion to reopen was available and could have
been discovered or presented at the previous proceeding. See 8 U.S.C. 1229a(c)(6); 8
C.F.R. 3.23(b)(4)(i). In fact, their claims regarding the increased violence in Kosovo were
substantially similar to those made in their two prior requests for asylum. Accordingly, the
BIA did not abuse its discretion in adopting the Immigration Judge’s finding that their
motion to reopen was untimely and not within the changed country conditions exception to
the time limits.
IV.
For the foregoing reasons, we will DENY the Petition for Review of the Order of the
Board of Immigration Appeals.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judg