[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 4, 2005
No. 04-15268 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A79-443-200 & A79-443-201
GRAMOS RAMAJ,
KEKERET RAMAJ, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
(May 4, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Petitioners Gramos Ramaj (“Gramos”), Kekeret Ramaj (“Kekeret”), Elvis
Ramaj (“Elvis”), Flutura Ramaj (“Flutura”), and Alona Ramaj (“Alona”)
(collectively “Ramajs” or “Petitioners”), through counsel, petition for review of
the Board of Immigration Appeals’ (“BIA’s”) dismissal of their appeal from the
immigration judge’s (“IJ’s”) removal order. On appeal, the petitioners argue that
the BIA erred by denying their motion to reopen based upon ineffective-
assistance-of-counsel.
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. See Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).
Judicial review of a denial of a motion to reopen in removal proceedings is limited
to determining “whether there has been an exercise of administrative discretion
and whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir
v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (citation omitted). The BIA abuses
its discretion when its decision “provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only
summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162
(10th Cir. 2003) (citations omitted). Motions to reopen are, however, disfavored,
especially in a removal proceeding, “where, as a general matter, every delay works
to the advantage of the [removable] alien who wishes merely to remain in the
United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116
L.Ed.2d 823 (1992).
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“It is well established that aliens enjoy the right to the effective assistance of
counsel in deportation proceedings.” Gbaya v. U.S. Atty. Gen., 342 F.3d 1219,
1221 (11th Cir. 2003) (internal quotations and citation omitted). “To establish the
ineffective assistance of counsel in the context of a deportation hearing, an alien
must establish that his or her counsel's performance was deficient to the point that
it impinged the 'fundamental fairness' of the hearing.” Id. (internal quotations and
citation omitted). The BIA has required that, when filing a motion to reopen based
on a claim of ineffective assistance of counsel, the alien must (1) submit an
affidavit attesting to the relevant facts; (2) inform former counsel of the
allegations and allow an opportunity to respond; and (3) if asserting that the prior
counsel's handling of the case violated ethical or legal responsibilities, state
whether a complaint has been filed with the appropriate disciplinary authorities,
and, if not, why not. Matter of Lozada, 19 I&N Dec. 637, 639 (BIA).
We have held that “[t]he BIA does not abuse its discretion by filtering
ineffective assistance of counsel claims through the screening requirements of
Lozada.” Gbaya, 342 F.3d at 1223. In Gbaya, we affirmed the denial by the BIA
of a petitioner’s motion to reopen based upon ineffective-assistance-of-counsel
where the petitioner failed to: (1) submit an affidavit attesting to the relevant facts
and his agreement with his former counsel, (2) inform his former counsel of the
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allegations and give him an opportunity to respond, and (3) present evidence that a
complaint had been filed with the bar association, holding that the petitioner had
failed to substantially comply with the requirements of Lozada. Id. at 1221-23.
Because the record demonstrates that the petitioners failed to: (1) submit an
affidavit attesting to the relevant facts and their agreement with their former
counsel, (2) inform their former counsel of the allegations and give her an
opportunity to respond, and (3) present evidence that a complaint had been filed
with the bar association, we conclude that the BIA did not abuse its discretion by
denying the petitioners’ motion to reopen based upon a claim of
ineffective-assistance-of-counsel.
The petitioners next argue that the IJ abused her discretion by denying their
motion for a continuance to have documents, which were written in their native
Albanian, translated into English.
We review an IJ’s denial of a motion for a continuance for an abuse of
discretion. See Olvera v. INS, 504 F.2d 1372, 1374 (5th Cir. 1974); see also Al
Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004). Federal regulations require
that:
Any foreign language document offered by a party in a proceeding
shall be accompanied by an English language translation and a
certification signed by the translator that must be printed legibly or
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typed. Such certification must include a statement that the translator
is competent to translate the document, and that the translation is true
and accurate to the best of the translator's abilities.
8 C.F.R. § 1003.33
Because the record demonstrates that petitioners never moved the IJ for a
continuance in order that their documents could be translated, we conclude that the
IJ could not have abused her discretion.
Finally, the petitioners argue that the IJ’s decision denying them asylum was
not supported by substantial evidence.
The BIA’s factual determination that an alien is not entitled to asylum
“must be upheld if it is supported by substantial evidence.” Mazariegos v. U.S.
Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). Under this highly
deferential standard of review, a denial of asylum may be reversed only if the
evidence would compel a reasonable factfinder to find that the requisite fear of
persecution exists. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812,
815 n.1, 117 L.Ed.2d 38 (1992).
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
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any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion . . . .
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). If the applicant meets this burden, then the Attorney General may exercise
his discretion to grant the applicant asylum. Id.
An alien is entitled to asylum if he can establish, with specific and credible
evidence: (1) past persecution on account of his membership in a particular social
group, or other statutorily listed factor; or (2) a “well-founded fear” that his
membership in a particular social group, or other statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. “[A]n
applicant must demonstrate that his her fear of persecution is subjectively genuine
and objectively reasonable.” Najjar, 257 F.3d at 1289. Establishing a nexus
between the statutorily listed factor and the feared persecution “requires the alien
to present specific, detailed facts showing a good reason to fear that he will be
singled out for persecution on account of” the statutorily listed factor. Id. at 1287
(internal quotation omitted). If the alien demonstrates past persecution, he is
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presumed to have a well-founded fear of future persecution unless the government
can rebut the presumption. 8 C.F.R § 208.13(b)(1).
If, however, the alien does not establish past persecution, he bears the
burden of showing a well-founded fear of future persecution by showing that
(1) he fears persecution based on his nationality, or other protected factor,
(2) there is a reasonable possibility that he will suffer persecution if removed to
his native country, and (3) he could not avoid persecution by relocating to another
part of his country, if, under all of the circumstances, it would be reasonable to
expect relocation. See 8 C.F.R. § 208.13(b)(2), (3)(i).
After reviewing the record, we conclude that substantial evidence supports
the BIA’s decision denying asylum, as petitioners failed to show that they were
persecuted on account of a statutorily protected ground.
For the above-stated reasons, we deny the petition for review.
PETITION DENIED.
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