Zayets v. Atty Gen USA , 118 F. App'x 653 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-30-2004
Zayets v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4398
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4398
SERGEY ZAYETS
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States
On Appeal from the United States Department of Justice
Board of Immigration Appeals
(BIA No. A73-054-920)
Argued December 6, 2004
Before: AMBRO and VAN ANTWERPEN, Circuit Judges,
and SHADUR, Senior District Judge.*
(Filed: December 30, 2004)
Susanne Peticolas, Esq. (Argued)
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102
Counsel for Petitioner
_______
* The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
Peter D. Keisler, Esq.
Assistant Attorney General, Civil Division
Alison Marie Igoe, Esq. (Argued)
Office of Immigration Litigation
United States Department of Justice
P.O. Box 878, Benjamin Franklin Station
Washington, D.C. 20044
Counsel for Respondent
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Petitioner Sergey Zayets seeks review of an October 9, 2003
Board of Immigration Appeals (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision not to reconsider his
motion to reopen his 1999 asylum hearing. In his motion, Petitioner
alleged a violation of his Fifth Amendment due process rights flowing
from the ineffective assistance of counsel in both the asylum hearing
and Petitioner’s subsequent untimely attempt to appeal from that
hearing. The BIA had jurisdiction over Petitioner’s appeal pursuant to
8 C.F.R. § 3.1(b)(3). This Court has jurisdiction over the Board’s
order dismissing that appeal pursuant to 8 U.S.C. § 1252(a)(1). For
the reasons set forth below, we will deny the petition.
I.
Petitioner Sergey Zayets, a citizen of the Ukraine, entered the
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United States as a non-immigrant visitor on April 9, 1993. When the
INS initiated removal proceedings on September 1, 1998, Petitioner
filed for asylum, claiming religious persecution. At his hearing,
Petitioner testified that he practiced Baptism and that he, his wife, and
his brother-in-law had encountered persecution ranging from ridicule
to job discrimination to physical attacks. Petitioner identified his
persecutors variously as nationalists, communists, local government
loyalists, thugs, and members of volunteer and government militias.
He testified that all of these groups were essentially the same to him.
He also testified to at least two specific attacks that occurred during
prayer meetings at his home. Petitioner testified that his wife was
hospitalized and suffered a miscarriage due to one attack in 1992 and
that his brother-in-law died due to a similar attack in 1993. Petitioner
also testified that while Ukranian officials repeatedly denied his
requests to leave the Ukraine for the former Czechoslovakia, those
officials nonetheless authorized his departure for the United States
upon his first request.
Magdalene Scriva, a family friend who testified in support of
Petitioner, testified to the fact of Petitioner’s wife’s hospitalization
and miscarriage as well as to the death of Petitioner’s brother-in-law.
She also testified that Petitioner himself had been hospitalized.
However, she was not present at the attacks, and she testified only to
3
what she had heard from Petitioner, his wife, and their families.
Petitioner offered no documents or records to support his testimony,
except for a death certificate indicating that his brother-in-law had
died as a result of a blow to the chest. Petitioner’s wife was not called
to testify, nor was any affidavit or other statement from her offered
into evidence.
In an oral decision dated August 9, 1999, the IJ denied
Petitioner’s asylum application. The IJ made an adverse credibility
determination, finding that while Petitioner likely practiced Baptism,
his remaining testimony was not credible. The IJ found that Petitioner
was vague as to the affiliations of his persecutors, that he was unable
to support his testimony with documents or records, and that there
were material inconsistencies between and among Petitioner’s
testimony, his asylum papers, and the testimony of Ms. Scriva. The IJ
also noted the lack of testimony from Petitioner’s wife, finding that
her absence contributed to the adverse credibility determination. The
IJ further found that the State Department country conditions reports
that were introduced into evidence at the hearing also supported the
adverse credibility determination.
On the basis of the above record evidence, the IJ found, in
addition to making the adverse credibility determination, that
Petitioner had not sustained his burden of proof to establish either past
4
persecution or a well-founded fear of future persecution, as set forth in
8 C.F.R. § 1208.13(a) and (b).
We then fast-forward to January 30, 2003, when Petitioner
filed a motion with the BIA to reopen his deportation proceedings. In
that motion, Petitioner alleged that he had not learned until “early
2002" that his appeal to the BIA from the IJ’s original decision had
been untimely filed in 1999, and subsequently dismissed in 2001.
Petitioner alleged that his former attorney was responsible and that
this attorney had further failed to ever notify him of the untimely
appeal or of its dismissal. Petitioner further alleged that his attorney
had failed to call his wife at the 1999 asylum hearing. Together,
Petitioner claimed, these failings of his attorney had prejudiced his
case in violation of his Fifth Amendment due process rights.
Lacking jurisdiction to consider Petitioner’s motion to reopen,
the BIA remanded it to the IJ for consideration, whereupon the IJ
denied the motion on May 20, 2003. Subsequently, on July 18, 2003,
the IJ also denied Petitioner’s motion for reconsideration of the denial
to reopen. Then, from that denied motion for reconsideration,
Petitioner appealed to the BIA. The BIA dismissed that appeal in an
order dated October 9, 2003. Pursuant to Petitioner’s petition for
review, that order alone is now before this Court.
II.
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We review the BIA’s dismissal of an appeal from a motion for
reconsideration for abuse of discretion, “mindful of the ‘broad’
deference that the Supreme Court would have us afford.” Xu Yong Lu
v. Ashcroft, 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.”). Moreover, as “[t]he decision to grant or deny a motion to
reopen or reconsider is within the discretion of the Board,” 8 C.F.R. §
1003.2(a), such “[d]iscretionary decisions of the BIA will not be
disturbed unless they are found to be ‘arbitrary, irrational or contrary
to law.’” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quoting So
Chun Chung v. U.S.I.N.S.), 602 F.2d 608, 612 (3d Cir. 1979).
With the scope of our review limited to the narrow question of
whether, in its October 9, 2003 order, the BIA abused its discretion in
dismissing Petitioner’s appeal from the IJ’s denial of his motion for
reconsideration, the BIA’s conclusions of law are reviewed de novo,
while its factual determinations are subject only to the highly
deferential substantial evidence standard. See INS v. Elias-Zacharias,
502 U.S. 478, 483-84 (1992); Chen Yun Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002). “[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
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conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (codifying Elias-
Zacharias, 502 U.S. at 483-84). That is, “[u]nder the substantial
evidence standard, the BIA’s findings must be upheld unless the
evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). Finally, to
the extent the BIA interpreted immigration laws or regulations in
dismissing Petitioner’s appeal, we normally defer to the BIA’s
interpretations. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);
Xu Long Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).
III.
The BIA dismissed Petitioner’s appeal on one ground, finding
Petitioner failed to demonstrate actual prejudice arising from the
alleged misconduct of Petitioner’s former counsel.1 The BIA
1
Although not germane to the BIA’s decision, Petitioner
contends that the doctrine of equitable tolling applies to the 90 day filing
requirement set forth in INA § 240(c)(6)(A) (motions to reopen “shall be
filed within 90 days of the date of entry of a final administrative order of
removal”). See 8 U.S.C. § 1229a(c)(6)(C)(i) (2002). Petitioner further
contends that his January 30, 2003 motion to reopen was thus timely,
notwithstanding that it was filed almost two years after the BIA denied
his appeal on March 30, 2001, because he was prevented from filing
earlier due to his former counsel’s misconduct. We need not resolve the
issue as it is not before us in the BIA’s order. Even if it were, and even
if § 240(c)(6)(A) were subject to equitable tolling, Petitioner could have
enjoyed such tolling only through “early 2002,” when he learned of his
dismissed appeal and the related alleged misconduct of his attorney. Yet
Petitioner did not file his motion to reopen until almost a year later, on
January 30, 2003. The 90 day limit of § 240(c)(6)(A) plainly expired
during this second period of time, as there are no grounds for tolling in
this case after early 2002.
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articulated two reasons for this conclusion. First, the BIA found, there
was no prejudice arising from the fact that Petitioner’s wife did not
testify at his 1999 asylum hearing. According to the BIA, the record
did not show attorney misconduct, but rather only a factual dispute
between Petitioner and his former attorney as to why Petitioner’s wife
was not called to testify. Moreover, the BIA found, Petitioner had
never subsequently proffered the testimony that his wife would have
provided had she been called to testify. Instead, the BIA found, in his
motion to reopen Petitioner had only generally asserted, in conclusory
fashion, that his wife’s testimony would have corroborated his story.
Consequently, the BIA concluded, Petitioner had not shown that his
attorney had acted improperly, to Petitioner’s detriment, at
Petitioner’s asylum hearing before the IJ in 1999.
Second, the BIA concluded that, even had Petitioner’s wife
testified, the IJ’s decision to deny Petitioner asylum was based on
other unrelated and independently sufficient grounds such that the
testimony could not have altered the outcome of Petitioner’s asylum
hearing. In support of this conclusion, the BIA observed the IJ had
made an adverse credibility determination against Petitioner not only
because of the absence of testimony from his wife, but also because of
material inconsistencies between and among Petitioner’s testimony,
his asylum application, and the testimony of a family friend, Ms.
8
Scriva. Moreover, the BIA found, the IJ further grounded the adverse
credibility determination upon a lack of documentation provided by
Petitioner, as well as additional inconsistencies between Petitioner’s
story and then-existing State Department country condition reports.
The BIA determined that these other findings supported an adverse
credibility determination regardless of what Petitioner’s wife might
have said had she testified before the IJ on her husband’s behalf.
The BIA turned next to the instances of misconduct by
Petitioner’s former attorney that allegedly occurred after the
conclusion of Petitioner’s asylum hearing: the untimely notice of
appeal, the alleged failure to notify Petitioner that his appeal was
dismissed as untimely, and the alleged failure to advise Petitioner of
his remaining rights in the wake of that dismissal. Here, the BIA
concluded that, because the outcome of Petitioner’s 1999 asylum
hearing would not have been different even if Petitioner’s wife had
testified, Petitioner could not show prejudice arising from his lost
opportunity to appeal from that hearing.
In support of this conclusion, the BIA found that the record
showed additional factual disputes between Petitioner and his counsel,
this time as to why the notice of appeal was untimely filed and as to
why Petitioner and his counsel had not communicated after the 1999
hearing. The BIA also cited to its decision in In re Assaad, 23 I.&N.
9
Dec. 553 (BIA 2003), which holds, inter alia, that an attorney’s
failure to file a timely appeal does not constitute per se prejudice.
IV.
We discern no abuse of discretion in the BIA’s October 9,
2003 order. Turning first to the legal conclusions underlying the
order, we find the BIA did not act contrary to law in requiring
Petitioner to show that the outcome of his 1999 asylum hearing may
have been different had his wife been called to testify. Petitioner
concedes this is the appropriate measure of prejudice, citing Ortiz v.
INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (“Prejudice is found when
the performance of counsel is so inadequate that it may have affected
the outcome of the proceedings.”). This Court recently reiterated this
standard. See Fischetti v. Johnson, 384 F.3d 140, 155 (3d Cir. 2004)
(allegations of ineffective assistance of counsel must show prejudice
measured by whether, but for the alleged ineffective assistance, a
reasonable probability exists that the outcome of the proceeding
would have been different). See also Sistrunk v. Vaughn, 96 F.3d 666,
670 (3d Cir. 1996).
Nor did the BIA act contrary to law in determining that its own
agency authority, In re Assaad, required Petitioner to demonstrate
actual prejudice based on the facts of his case. While Petitioner is
correct that aliens in deportation proceedings enjoy Fifth Amendment
10
due process protections, the ineffective assistance of counsel in
deportation proceedings may constitute a denial of due process only in
certain circumstances. See, e.g., Xu Long Lu, 259 F.3d at 131.
Petitioner does not argue that the BIA’s decision in In re Assaad is
contrary to these principles, nor does he argue that the BIA applied In
re Assaad to him in error.
The analysis thus turns on whether, based on a review of the
administrative record as a whole, the BIA’s underlying
determinations, set forth above, are supported by substantial evidence.
Our review of the record evidence in this case, taken as a whole,
shows such substantial evidence is present, as the record does not
compel conclusions contrary to the BIA’s findings. First, the record
evidence does not compel a contrary conclusion with respect to the
IJ’s adverse credibility determination or his finding that Petitioner had
not met his burden in establishing past persecution or a reasonable
fear of future persecution. This Court reviews credibility
determinations under the same highly deferential substantial evidence
standard that we apply to other factual determinations. Mulanga v.
Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003). Here, the IJ appropriately
determined that the record revealed discrepancies among and between
Petitioner’s testimony, Ms. Scriva’s testimony, and Petitioner’s
asylum papers. These included ambiguities on the question of who
11
perpetrated the alleged acts of persecution suffered by Petitioner and
his family. Petitioner identified the perpetrators variously as
nationalists, communists, local government loyalists, members of
volunteer and government militias, and common thugs. When asked
by the IJ to attempt to clarify the likely affiliations of his persecutors
in relation to the specific attacks Petitioner had testified to, Petitioner
stated that it did not matter to him, as he preferred to use the same
names for all of them.
An alien has the burden of proof to establish his or her
eligibility for asylum, 8 C.F.R. § 1208.13(a), and must present
evidence of persecution that is not only credible, but also specific.
Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir. 1998). While
Petitioner’s generic references to his attackers might be
understandable, they appropriately contributed to the IJ’s cogent and
specific finding that Petitioner was unable to credibly present his case
and carry his burden of proof. See id. at 161-62.
The record evidence of the State Department country condition
reports provided further substantial evidence to support the adverse
credibility determination and the finding that Petitioner had not
carried his burden. “Just because [a] State Department report cuts
both ways . . . does not mean that it does not constitute substantial
evidence” further undermining the credibility of an alien’s persecution
12
claim. Kayembe v. Ashcroft, 334 F.3d 231, 237 (3d Cir. 2003).
As such, based on the record evidence as a whole, we believe
that a reasonable adjudicator would not be compelled to reach
contrary conclusions with respect to Petitioner’s adverse credibility
determination and his failure to demonstrate past persecution or a
reasonable fear of future persecution.
Nor does the record evidence compel a contrary conclusion to
the BIA’s finding that the testimony of Petitioner’s wife could not
have affected the outcome of Petitioner’s 1999 asylum hearing.
Petitioner has never proffered, with specifics, what his wife would
have said had she been called to testify, and there is substantial
evidence in the record, summarized above, supporting the BIA’s
finding that in this case there were independent shortcomings with
Petitioner’s case, all unrelated to the absence of his wife’s testimony.
In addition to those shortcomings we have already set forth
above, we observe Petitioner’s failure to provide supporting
documents relating to the critical events of his story of persecution
that took place as a result of his practice of Baptism: his wife’s
hospitalization and miscarriage in 1992, his brother-in-law’s death in
1993, his own apparent hospitalization (a claim made by Ms. Scriva,
but not by Petitioner himself), and Petitioner’s alleged attempts to
leave the Ukraine for the former Czechoslovakia in order to escape
13
persecution. We have held that the BIA may require even an
otherwise credible applicant to submit sufficient corroborating
evidence, such as documents and records, if it is “reasonable to expect
corroboration.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.
2001). Here, the record before the IJ already contained substantial
evidence to support an adverse credibility determination, and as such
it was reasonable for the IJ to therefore require documentary
corroboration as to each of the events that comprised the heart of
Petitioner’s story. It was reasonable to expect such documentation.
At least two of the events involved hospitals (and therefore
presumably doctor, nurse, and administrative staff records) while
another involved official rejections by Ukranian visa officials of
Petitioner’s formal applications to leave the Ukraine for the former
Czechoslovakia. However, Petitioner proffered only one document,
the death certificate of his brother-in-law. While the death certificate
does not contribute to the adverse credibility finding, as it supports
Petitioner’s testimony that his brother-in-law died due to a blow to the
chest, that document alone cannot compel a contrary conclusion as to
the BIA’s overall finding.
In sum, taking the evidence in the record as a whole, we are
not compelled to reach a conclusion contrary to the BIA’s finding
that, even had Petitioner’s wife testified, the outcome of Petitioner’s
14
1999 asylum hearing would have been the same. The same is thus
true with respect to the BIA’s findings that Petitioner suffered no
prejudice during his 1999 hearing or after upon the loss of his
opportunity to appeal from that hearing. In reaching this conclusion,
we observe the deference we must afford the order before us, given its
unique procedural posture. We are also mindful that the only
circumstance in which support by substantial evidence will not be
found is when a reasonable adjudicator “‘would be compelled to
conclude to the contrary’” of the BIA. Kayembe, 334 F.3d at 237(quoting Chen Yun Gao, 299 F.3d at 272 (emphasis in original).
We have considered the remaining arguments advanced by the
parties and conclude that no further discussion is necessary. The
BIA’s order of October 9, 2003, being supported by substantial
evidence, is not arbitrary, irrational, or contrary to law. Accordingly,
for the foregoing reasons, the petition is denied.2
2
Our decision is without prejudice to any attempt by Petitioner
to secure habeas jurisdiction in federal district court over his ineffective
assistance of counsel claims. See Chmakov v. Blackman, 266 F.3d 210(3d Cir. 2001).
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