Besnik RUKIQI, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES; Bureau of Citizenship and Immigration Services; Department of Homeland Security, Respondents, 246 F. App'x 119

OPINION OF THE COURT RENDELL, Circuit Judge. Besnik Rukiqi petitions from the BIA’s denial of his Motion to Reopen his asylum ease, which the IJ and BIA previously had denied as untimely. He alleges that the BIA abused its discretion in denying his Motion to Reopen, which was based on a claim of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Mindful of the heavy burden an alien bears on a motion to reopen, we will deny the petition. I.

Besnik Rukiqi is a citizen of Serbia—a native of the province of Kosovo—who contends he faces persecution there by Serbians on account of his Albanian background and pro-Albanian sentiment. He maintains that he was arrested in 1988 and held for two weeks, during which time he was brutally beaten and, thereafter, regularly stopped and harassed by the police. In 1998, he states that Serbians began killing and “disappearing” ethnic Albanians and burning Albanian villages.

In April 1999, after his father had been killed, Rukiqi states that he and his brother fled to the mountains where they survived for two months, “nearly starving to death.” App. 10. They returned to their village after NATO troops arrived in June 1999, finding their house had been burned and many male relatives and friends killed. Even after NATO’s arrival, Rukiqi states that he faced continued threats from Serbians as well as from extremist Albanian forces that resented him for fleeing to the mountains rather than fighting.

He contends that someone tried to kill him on two occasions in January 2000—once firing shots at him as he was walking down a road. He fled to the United States in April 2000. Rukiqi states that he hired lawyer Martin Vulaj two months after he arrived in the United States, and that Vulaj assured him he would immediately file an asylum application, along with petitions for withholding of removal and relief under the Convention Against Torture (CAT). After months passed without word from Vulaj, Rukiqi called Vulaj’s office to check that his application was on track.

He contends that Vulaj told him he had filed the application. Apparently not convinced, Rukiqi later called the office again, but could not make contact with Vulaj. Rather, an employee at Vulaj’s office repeatedly told him that Vulaj had filed the application. As the one-year deadline approached, Rukiqi states that he began “incessantly” calling Vulaj’s office. App. 3. Two days prior to the one-year deadline, Vulaj’s staff summoned him to the office to re-sign the asylum forms and provide new photographs.

The staff assured him that his application would be timely filed, but Vulaj filed it three days after the deadline. The Department of Homeland Security then rejected the application because it was incomplete. Vulaj finally filed the completed application two months later. Another attorney, Timothy Garille, represented Rukiqi before the IJ. An Albanian interpreter, a Mr. Brovac, was sworn, as was Rukiqi. There was an extensive discussion, spanning seven pages of the Administrative Record, R. 184-91, regarding the filing date of the asylum application.

Finally, counsel for the Government produced a filed copy that revealed that the application was filed on April 23, 2001—three days late. The IJ asked whether Rukiqi had “any extenuating circumstances to offer the court” that would excuse his late filing. The IJ then recessed the hearing for “a while”—as the IJ described it—so that Garille could discuss this with Rukiqi. R. at 193. After this break, Garille announced to the IJ that he could offer no extenuating circumstances. The IJ consequently denied Rukiqi’s asylum application as time-barred.

The IJ then heard Rukiqi’s testimony in support of his petitions for withholding of removal and relief under CAT, and denied them on substantive grounds. R. at 194-209. On appeal, Rukiqi was represented by yet another attorney—Linda Flanagan— who, as the Administrative Record suggests, R. at 99, worked for the “Law Offices of Isejn Marku.” However, Rukiqi claims that he did not know Marku nor how Marku came to be involved in the case. Brief for Appellant at 4-5.

Flanagan’s brief, the argument portion of which being barely a page long, did not discuss the IJ’s determination that Rukiqi’s asylum application was time-barred, nor did it refer to Vulaj’s having been ineffective in failing to timely file it. The BIA affirmed the IJ’s ruling on October 6, 2003. Rukiqi retained his current counsel, Jennifer Oltarsh, shortly after the BIA’s denial of his appeal and Ms. Oltarsh promptly filed a Motion to Reopen with the BIA. In the motion, Rukiqi alleged that it was from Ms.

Oltarsh that he first learned that Vulaj had not timely filed the asylum application and, therefore, that he was deserving of relief on the basis of extraordinary circumstances—to wit, ineffective assistance of counsel on the part of Vulaj. With the Motion to Reopen, Rukiqi submitted an affidavit describing Vulaj’s alleged errors in representation and including a copy of a complaint he sent to the Departmental Disciplinary Committee of the First Judicial Department of New York State. He also included the Committee’s reply stating that “Mr.

Vulaj ... has resigned from the practice of law” and a copy of an order of the Appellate Division “striking Mr. Vulaj’s name from the roll of attorneys admitted to practice in New York State.” App. 27. Rukiqi’s brief also makes mention of the fact that he also complained about Marku to the Disciplinary Committee and soon thereafter came to understand that Marku “was forced to resign from the practice of law for disciplinary reasons.” R. at 15. However, Rukiqi did not advance, and submitted no documentation in support of, an ineffective assistance of counsel claim against Garille, Marku or Flanagan.

The BIA denied relief, stating that it did not believe extraordinary circumstances were present. In doing so, the BIA relied on the fact that Rukiqi failed to establish that the two attorneys who represented him before the IJ and the BIA were ineffective. App. 19 (“Because the record shows that the respondent continued to use these attorneys at his hearing and on appeal and the attorney at the hearing conceded the untimeliness of the asylum request and the lack of extraordinary circumstances, we find that such circumstances undermines his ineffective assistance of counsel claim.”). This petition followed. II.

As Rukiqi failed to file a petition for review of the BIA’s initial denial of his appeal from his asylum application, we review only the BIA’s denial of Rukiqi’s motion to reopen. We view motions to reopen immigration proceedings “with strong disfavor.” Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005). As we observed in Zheng, “we review the BIA’s decision to deny reopening for abuse of discretion, mindful of the ‘broad’ deference that the Supreme Court would have us afford.” Id. (quoting Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001)). On this appeal, the Government moved for

summary affirmance of the BIA’s denial of the motion to reopen, arguing that Rukiqi had not challenged the representation by the attorneys who represented him before the IJ and the BIA, namely Garille and Flanagan. This, notwithstanding the fact that it was Garille who made the fatal concession before the IJ conceded that there were no extraordinary circumstances.

While the affidavit Rukiqi filed with his motion to reopen indicates that he did not “understand any of the discussion [before the IJ regarding the late filing] and [was] not sure that it was even translated,” surely Rukiqi heard the extensive discussion of the tardy filing and had to realize that he had been misled by Vulaj. If neither Garille, before the IJ, nor Flanagan, before the BIA, raised this issue, we cannot conclude that the BIA’s unwillingness to reopen Rukiqi’s proceedings was abusive.

The reopening of agency proceedings based upon ineffective assistance of counsel depends, initially, upon an asylum seeker’s compliance with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). There, the BIA established that: [a] motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts.

In the case before us, that affidavit should include [1] a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the respondent in this regard. [2] Furthermore, before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond.

Any subsequent response from counsel, or report of counsel’s failure or refusal to respond, should be submitted with the motion. [3] 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 regarding such representation, and if not, why not. Id. at 639.

The BIA stated that such a “high standard” for ineffective assistance of counsel claims is necessary to ensure that administrative records are sufficiently detailed, because “[w]here essential information is lacking, it is impossible to evaluate the substance of [an ineffective assistance of counsel] claim.” Id. We considered the permissibility of the Lozada requirements in Xu Yong Lu, 259 F.3d at 133.

In that ease, the petitioner “claimed ... his fundamental due process rights” had been violated by the IJ’s refusal to reopen his case notwithstanding his contention that ineffective assistance of counsel had stymied his attempt to appeal. Id. at 130. Although we expressed “concer[n] that courts could apply Lozada’s third prong so strictly that it would effectively require all petitioners claiming ineffective assistance to file a bar complaint,” we upheld the BIA’s rule, “concluding] that the Lozada requirements are a reasonable exercise of the Board’s discretion.” Id. at 129, 133.

As to Vulaj, Rukiqi’s motion to reopen falls far short of Lozada’s requirements. Although he submitted an affidavit with his motion to reopen, that affidavit fails to “se[t] forth in detab the agreement that was entered into with former counsel.” Lozada, 19 I. & N. Dec. at 639. In the affidavit, Rukiqi refers to Vulaj as “my counsel,” but says nothing about the substance of Vulaj’s agreement to represent Rukiqi. Additionally, the motion to reopen does not establish that Rukiqi informed Vulaj of his dissatisfaction—Lozada’s second requirement. See id.

Although Rukiqi suggests otherwise in his brief on appeal, the administrative record contains no evidence that Rukiqi sent Vulaj a copy of his formal complaint or otherwise informed him of his discontent. Additionaby, as the BIA noted, Rukiqi has not even attempted to satisfy Lozada as to the two lawyers who actively represented him before the IJ and the BIA: Garble and Flanagan. This is not a minor point. On Rukiqi’s behalf—and, indeed, right in front of him—Garble conceded that Rukiqi stated he could offer no extraordinary circumstances that would excuse the late filing of his asylum application.

Then, in her brief to the BIA, Flanagan fabed to raise the issue altogether. In sum, Rukiqi’s counsel conceded that his asylum application was filed late, and then never pursued any chabenge to this finding on appeal to the BIA. In his motion to reopen, Rukiqi failed to even refer either to Garble or Flanagan’s representation, much less argue that they were ineffective.

The BIA’s view—that Rukiqi’s motion was flawed because it did not claim ineffectiveness as to Rukiqi’s counsel who conceded, and then waived, the argument that there were extraordinary circumstances to excuse the delay in Rukiqi’s filing—was not an abuse of discretion. Yet Rukiqi suggests, and the dissent argues, that Garble and Flanagan may have failed to raise an extraordinary circumstances argument based on Vulaj’s ineffectiveness out of an unethical abegiance toward Vulaj. The evidence on this point is non-existent.

However, even if true, it constitutes a claim of ineffectiveness on the part of Garille and Flanagan. To say that Garille and Flanagan purposefully failed to raise an argument about Vulaj’s ineffectiveness is to say that both attorneys were, themselves, ineffective. However, to establish such a claim in the immigration context, an alien must first satisfy Lozada.

Although the dissent may disagree with the stringency with which we demand that Rukiqi adhere to Lozada as to Vulaj, there can be no doubt that, with respect to Garille and Flanagan, Rukiqi has failed to satisfy Lozada even under the most relaxed application possible. Indeed, Rukiqi has not tried to satisfy Lozada at all. In short, we are left with a situation in which Petitioner had to know of an ineffectiveness claim and then waived it by failing to assert it before the BIA or in his motion to reopen.

We cannot nullify the BIA’s ruling based on an argument not presented to it and, therefore, we find no abuse of discretion. We are not employing the sort of “strict, formulaic

interpretation of Lozada” that we expressed concern about in Xu Yong Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001). This is not a case of a petitioner brought down because he fell short of a single Lozada requirement; it is a case of a petitioner who faded to act when he first knew of counsel’s failures and did not fulfill multiple requirement as to one attorney and all of the requirements as to the other attorneys involved in his case.

As in Xu Yong Lu, 259 F.3d at 135, “[i]f we were to accept [Petitioner’s] arguments, we would seriously undermine the BIA’s ability to assess the ‘substantial number’ of claims it receives, and thus frustrate the stated goal of Lozada.” Accordingly, we will DENY the Petition for Review. . Petitioner’s brief does not describe in detail the factual basis of his claim, so we draw on the affidavit Rukiqi submitted with his Motion to Reopen. .

Additionally, the BIA opined that, even had Rukiqi established extraordinary circumstances, current country conditions in Kosovo reflect that ethnic Albanians face only "some discrimination ... not rising to the level of persecution.” Appx. at 19. Therefore, the BIA held that, were it to allow reopening, Rukiqi could nevertheless not "established a prima [facie] showing of eligibility for asylum.” Id. .

The dissent argues that “[w]hile [the BIA’s opinion] might be read to say that Rukiqi did not meet the Lozada requirements with respect to Garille, Flanagan, and Marku, it is not a holding that Rukiqi failed to meet the Lozada requirements with respect to Vulaj.” Dissent at 20-21. Therefore, in the dissent’s view, "it was an abuse of discretion for the BIA to deny Rukiqi's motion to reopen on the grounds that, of the lawyers from Vulaj’s firm who represented Rukiqi, only Vulaj ended up disbarred.” Dissent at 11.

However, the BIA’s decision, as well as a substantial portion of this opinion, is premised on the idea that, even had Rukiqi met the Lozada requirements with respect to Vulaj, he also had an obligation to meet them with respect to those additional attorneys who actively represented him before the BIA. The dissent simply has no response to the argument that Rukiqi failed to meet this obligation and that his failure to do so dooms his motion to reopen. . This theory is based upon the assertion that Vulaj, Marku, Garille and Flanagan were all members of the same law firm.

We do not agree that the record supports this theory, especially given that, at oral argument before this Court, counsel for Rukiqi twice conceded that the record contained nothing explaining any potential relationship. The dissent arrives at this conclusion by examining letterhead, and other bits of information included in the Administrative Record. The BIA’s observation as to the association between Vulaj and Marku, Flanagan and Garille, on which the dissent relies, is no more than a parenthetical assumption. See Dissent at 3 (quoting Appx. at A18).