Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-21-2008
Sadiku v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2548
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2548
___________
HAXHI PELLUMB SADIKU,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A73-616-135
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 7, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: May 21, 2008)
___________
OPINION
___________
PER CURIAM
Petitioner Haxhi P. Sadiku, a native and citizen of Albania, entered the United
States on April 14, 1997 on a nonimmigrant B-1 visa, with authorization to remain until
May 13, 1997. On November 10, 1999, he was served with a Notice to Appear, alleging
that he was removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B), as an overstay. At a master calender hearing, he admitted the
factual allegations through counsel, Jose Camilo, Esquire, and conceded removability.
On August 26, 1997, Sadiku filed his application for asylum under INA § 208(a), 8
U.S.C. § 1158(a), and withholding of removal under INA § 241(b)(3), 8 U.S.C. §
1231(b)(3), and the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18,
claiming a fear of persecution on account of political opinion. At a hearing on the merits
on July 10, 2000, the Immigration Judge denied his applications, concluding that he
lacked credibility and that conditions had changed in Albania. His application for
voluntary departure was denied. On February 5, 2003, the Board of Immigration Appeals
affirmed, specifically agreeing with the IJ’s findings concerning credibility. Sadiku did
not petition for review of this decision.
On March 9, 2007, Sadiku, through new counsel, Timothy G. Griffin, Esquire,
filed an untimely, see 8 C.F.R. § 1003.2(c)(2) (providing for 90 day filing deadline),
motion to reopen. He alleged that prior counsel inadequately supported and presented his
claim that he and his family suffered persecution under the old Communist regime and at
the hands of the new Socialist and Democratic Parties. Prior counsel did not, for
example, submit evidence that he bore physical scars from torture. Sadiku argued that the
filing deadline should be equitably tolled in his case because prior counsel had rendered
ineffective assistance in handling his asylum claim, specifically, in failing to prepare him
adequately to testify. He noted, however, that he had not filed a complaint with
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disciplinary authorities because “no violation of applicable disciplinary rules is alleged
here.” A.R. 71. Several new items were submitted in support of the motion to reopen.
Sadiku’s sister submitted a statement, dated March 19, 2007, in which she noted that his
wife was so distraught over the May 1996 stabbing that she suffered a miscarriage.
Sadiku’s father submitted a statement, dated March 16, 2007, attesting to the
circumstances surrounding the stabbing and the miscarriage, A.R. 31. Other family
members submitted recently executed statements as well. In addition, a nurse, Liri Selim
Bici, submitted a statement, dated March 14, 2007, that she was present when three men
brought Sadiku to the hospital, wounded and bleeding from stab wounds, and that he
remained in the hospital for two weeks. A.R. 34.
On March 28, 2007, the Board of Immigration Appeals denied the motion to
reopen. The Board concluded that Sadiku’s allegations of ineffective assistance were
vague and they did not excuse the 4 year delay in filing. Citing Mahmood v. Gonzales,
427 F.3d 248, 252-53 (3d Cir. 2005), the Board held that Sadiku had failed to show
diligence in making his claims against prior counsel in a motion to reopen. In addition,
he had failed to comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988), for making a claim of ineffective assistance. See also Zheng v. Gonzales,
422 F.3d 98, 106 (3d Cir. 2005). The Board also declined to exercise its sua sponte
authority to reopen proceedings. Sadiku timely petitioned for review of this Board
decision in the Court of Appeals for the Second Circuit, and the matter was transferred
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here for lack of venue.
We will deny the petition. We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(1). We are not authorized to review the Board’s February
5, 2003 decision, because the petition for review is timely, see 8 U.S.C. § 1252(b)(1)
(providing for thirty period for filing petition for review), only as to the March 28, 2007
decision. See Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405-06 (1995)
((holding that, in context of motion for reconsideration or to reopen, Congress envisioned
two separate timely petitions for review of two separate final orders). Here, Sadiku did
not seek review in this Court of the Board’s February 5, 2003 decision, and we thus have
no jurisdiction to address the arguments he raises in his brief concerning whether the IJ’s
and Board’s adverse credibility determination is supported by substantial evidence, see 8
U.S.C. § 1252(b)(4)(B); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).1
1
In a statement, A.R. 585-88, and brief, A.R. 606-610, in support of this application,
Sadiku explained that he was born in Korca, Albania on April 3, 1965. In 1967, his
mother’s uncle was arrested by the Communist government of Albania for speaking out in
favor of Islam. He was hanged in the center of the city and his body was left hanging for
two days. The family was then forced to live in a closed compound for three years.
Conditions were very harsh. There were no lights and no running water. There was little
food, and beatings were common. In 1969, when his family was freed, they settled in
Shingjergi but they continued to be persecuted as “enemies of the state.” Sadiku
supported the Democratic Party of Albania when it first came to power. On February 21,
1991, he and his brother were on their way to an anti-Communist demonstration when
they were arrested and detained for three days, during which time they were interrogated
and beaten by the police. In November 1991, he moved to Tirana and opened a small
store. He became a member of the Democratic Party and was involved in many meetings
in and around Korca. In the summer of 1993, the Socialists were protesting because their
leader, Fatos Nano, had been jailed by the Democratic government of Albania. The
protest took place in front of his store. The police beat the Socialist protesters with clubs
4
We review the denial of a motion to reopen under an abuse of discretion standard.
Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992). The Supreme
Court has stated that “[m]otions for reopening of immigration proceedings are
disfavored,” noting that “as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.” Id. We will not
disturb the Board’s discretionary decision unless it was arbitrary, irrational or contrary to
law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). “An alien may file
one motion to reopen proceedings,” and such a motion “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
and Sadiku tried to intervene. This angered two security officials who then questioned
his loyalty to the Democratic Party, took him to a police station, and beat him on his back,
head and legs. On May 26, 1996, there were elections in Albania, and rumors that the
Democratic Party was trying to manipulate the results. Sadiku went to the polling place,
and remained at the center all day. He witnessed police cars with civilians inside, being
transported for the purpose of casting votes in favor of Democratic Party leader Sali
Berisha. Sadiku was asked to vote more than once and he refused. After returning home
for dinner, on his way back to the polling place, he was accosted by three men. His arms
were held by two of them, and a third stabbed him twice, in the left part of his torso just
below the rib cage, and again on his left shoulder. Someone took him to the hospital in
Tirana. He believed that this attack was a direct result of his having refused to participate
in manipulating the election for the Democratic Party. Photographs of Sadiku’s bare
torso showing scars appear in the Administrative Record, A.R. 538. On June 20, 1996,
his store was burned down, he thinks by the same people who stabbed him. He and his
wife left Tirana on September 9, 1996. His uncle was killed in April 1997 during the
violence that occurred when the pyramid investment schemes destroyed the Albanian
economy. After his father and brother complained about the lack of real democracy in
Albania, their house was burned down. The IJ had several problems with inconsistencies
in Sadiku’s application regarding events central to his claim, and he expected to see
hospital records relating to the stabbing. He also noted inconsistencies in Sadiku’s
assertions about how and when he entered the United States.
5
affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(A),(B). Ordinarily,
“[t]he motion to reopen shall be filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
See also Luntungan v. U.S. Attorney General, 449 F.3d 551, 555 (3d Cir. 2006) (per
curiam).
Sadiku’s motion to reopen was almost fours year late. Because the motion to
reopen was untimely, and none of the exceptions apply,2 the Board did not abuse its
discretion in denying it. Doherty, 502 U.S. at 323; Sevoian, 290 F.3d at 174. In
Mahmood, 427 F.3d at 250-51, we held that attorney conduct can provide a basis for
equitable tolling of the ninety-day deadline, but failure to exercise due diligence in
asserting ineffective assistance of counsel undermines any claim for equitable tolling of
the motion to reopen deadline, id. at 252-53. See also Borges v. Gonzales, 402 F.3d 398,
407 (3d Cir. 2005). Here, Sadiku waited almost four years after the Board’s decision to
file his motion to reopen, and he offered no reason for this lengthy delay. His bald
assertion that prior counsel did not tell him that his asylum application had been denied
does not account for the four year delay.
In addition, in Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001), we held that the
Board’s procedural requirements for asserting a claim of ineffective assistance of counsel
are a reasonable exercise of the Board’s discretion. A motion based on a claim of
2
There are exceptions to the ninety day deadline which are not applicable here. 8
C.F.R. § 1003.2(c)(3).
6
ineffective assistance of counsel should be supported by an affidavit attesting to the
relevant facts that sets forth in detail the agreement that was entered into with prior
counsel with respect to the actions to be taken. Furthermore, prior counsel must be
informed of the allegations and allowed the opportunity to respond. Finally, if it is
asserted that prior counsel's handling of the case involved a violation of ethical or legal
responsibilities, the motion should reflect whether a complaint has been filed with
appropriate disciplinary authorities, and if not, why not. Lozada, 19 I.& N. Dec. at 638.
We agree that Sadiku failed to comply with the Lozada requirements. Thus, the Board’s
denial of the motion as untimely was not arbitrary, irrational, or contrary to law, and the
Board properly exercised its discretion in denying the motion to reopen, see Zheng, 422
F.3d at 106. Because the motion was untimely, we may not consider its merits, and
specifically Sadiku’s contention that he had new evidence, the aforementioned
statements, that previously were unavailable and thus provided a basis for reopening
removal proceedings.
For the foregoing reasons, we will deny the petition for review.
7