                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2008

Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3893




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-3893
                                    ____________

                     RITABAHEN GHANSHYAMBHAI PATEL,

                                             Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                             Respondent
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A97 436 268)
                         Immigration Judge: Annie S. Garcy
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 10, 2008

          Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                              (Filed: February 11, 2008 )
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Ritabahen Ghanshyambhai Patel seeks review of an order of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of her
request for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). In addition, she claims that she is entitled to relief because of

ineffective assistance of counsel. For the reasons that follow, we will deny the petition.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Patel, a native and citizen of India, entered the United States on June 6, 2003,

using her passport that contained a “fake green card stamp.” The fake stamp was placed

in her passport by a person referred to as an “agent” or “smuggler.” Her stated motivation

for coming to the United States was to be with Atul Kumar Patel (“Atul”), who is now her

husband (they were not married at the time of her arrival). After Patel’s arrival, the

authorities acted on a tip from the couple to arrest and prosecute the smuggler who

brought her to this country. Subsequent to the smuggler’s arrest, an unidentified

individual began making threatening phone calls to Atul, and at least one of the calls

threatened harm to Patel. On December 18, 2003, the Department of Homeland Security

notified Patel that removal proceedings had been instituted against her.

       At her immigration hearing, Patel asserted that the threats made indirectly to her

supported a finding that she qualified for asylum, protection under the CAT, and/or

withholding of removal. With her attorney, Jonathan Saint-Preux, Patel argued that the



                                              2
threats against her and her husband supported a finding that she would be subject to harm

at the hands of the alleged smuggling ring if she returned to India. Therefore, she argued

that she had demonstrated a well-founded fear of future persecution.

       The IJ denied asylum, finding that Patel failed to satisfy the requirements. The IJ

stated that Patel failed to present evidence that the threat she faced was from an individual

whom the government of India was unable or unwilling to control. Additionally, the IJ

found that Patel presented no evidence that she was being targeted on account of her race,

religion, nationality, membership in a particular social group, or political opinion.

       The IJ also denied her application for withholding of removal and protection under

the CAT. Withholding of removal was denied because the IJ concluded that the evidence

of phone calls from an unknown source did not establish a well-founded fear of future

persecution. The IJ denied her CAT claims because Patel did not identify any fear of

harm that would come at the hands of public officials in India or from someone acting

with the consent or acquiescence of public officials.

       Patel, assisted by new counsel, appealed the IJ’s decision to the BIA. In addition

to arguing that she merited the relief she sought, she made a claim of ineffective

assistance of counsel. She stated that her husband, Atul, was prepared to testify before

the IJ, but her attorney failed to call him as a witness for reasons she does not understand.

The hearing transcript reveals that the IJ expressed doubt as to the benefit of such

testimony, and Patel’s counsel agreed that Atul would not provide any new information.



                                              3
Patel argues that Atul’s testimony would have been helpful. In her appeal, Patel attached

an affidavit from Atul, which states that Atul and Patel informed the U.S. government

about the smugglers, and that Atul believes the smugglers have been deported and are in

Gujarat, where the Indian government is unable and unwilling to control them.

       The BIA affirmed the decision of the IJ on all grounds, rejecting Patel’s claim of

ineffective assistance of counsel because she failed to satisfy the procedural requirements

laid out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)). The BIA further

concluded that even if she had fulfilled Lozada’s procedural requirements, there was no

evidence that she suffered prejudice as a result of her attorney’s conduct. Patel filed a

timely petition for review.

                                             II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). In cases where the BIA both

adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, the

Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215,

222 (3d Cir. 2004). We review the IJ’s decision and the BIA’s affirmance under the

deferential “substantial evidence” standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.

2003) (en banc). A finding is not supported by substantial evidence only where “no

reasonable fact finder could make that finding on the administrative record.” Id.

       In order to qualify for asylum, an individual must prove that she has “a well-

founded fear of persecution on account of race, religion, nationality, membership in a



                                              4
particular social group, or political opinion.” 8 U.S.C § 1101(a)(42)(A). However, “any

claim of persecution, violence or other harm . . . does not constitute persecution unless

such acts are ‘committed by the government or forces the government is either ‘unable or

unwilling’ to control.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (quoting

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003)). In order to qualify for

withholding of removal, the applicant must demonstrate a “clear probability” that

persecution will result if the applicant is removed to a particular country. I.N.S. v. Stevic,

467 U.S. 407, 413 (1984).

       In order to qualify for relief under the CAT, the applicant must present evidence

establishing “that it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). An act is not considered

torture if it is not “inflicted by or at the instigation of or with the consent or acquiescence

of a public official or other person acting in an official capacity.” Id. § 208.18.

       The parties dispute whether Patel effectively made a motion to reopen and remand

before the BIA when she asserted an ineffectiveness of counsel claim. We agree with the

government that because Patel stated new facts supported by affidavits when raising that

claim, she effectively made a motion to reopen. See 8 C.F.R § 1003.2(c)(1). Patel’s

motion to reopen was made while she had an appeal pending and therefore “may be

deemed a motion to remand.” 8 C.F.R. § 1003.2(c)(4). “[W]e review the [BIA’s] denial

of a motion to reopen [and remand] for abuse of discretion.” Fadiga v. Att’y Gen., 488



                                               5
F.3d 142, 153 (3d Cir. 2007) (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004)).

“However, we review de novo the Board’s determination of an underlying procedural due

process claim,” such as a claim of ineffective assistance of counsel. Id.

         In order to argue ineffectiveness of counsel in support of a motion to reopen, an

alien must fulfill certain procedural requirements:

         The alien must (1) support the claim with an affidavit attesting to the
         relevant facts; (2) inform former counsel of the allegations and provide
         counsel with the opportunity to respond (this response should be submitted
         with the alien’s pleading asserting ineffective assistance); and (3) state
         “whether a complaint has been filed with appropriate disciplinary
         authorities regarding [the allegedly deficient] representation.”

Fadiga, 488 F.3d at 155 (quoting Lozada, 19 I. & N. Dec. at 639). If a complaint is not

filed, as required under the third Lozada requirement, then the applicant must provide a

reasonable explanation why not. Xu Yong Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir.

2001).

         In addition to meeting the procedural requirements, an alien claiming ineffective

assistance of counsel must meet two substantive requirements, showing “(1) that [she]

was prevented from reasonably presenting [her] case and (2) that substantial prejudice

resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks and citation omitted).

                                              III.

         Patel argues that the IJ’s decision and the BIA’s affirmance were not based on

substantial evidence. She states that she presented sufficient evidence that she was a

member of a social group: those who experience human smuggling and testify against the

                                               6
smugglers. Patel claims that the BIA took a “strained and unsubstantiated” view of the

evidence.

       Regardless of whether Patel is a member of a social group, she has failed to

present any evidence that would show that the government of India is either unable or

unwilling to control the smugglers who would allegedly persecute her, or would consent

or acquiesce in such persecution. Because of the lack of credible evidence in the record,

we are unable to conclude that it was unreasonable for the IJ and BIA to find that she

failed to satisfy the asylum requirements.

       Having failed to satisfy the asylum requirements, Patel has necessarily failed to

satisfy the more stringent requirements for withholding of removal. Chen, 376 F.3d at

223. In addition, it was not unreasonable for the IJ and BIA to conclude that Patel is not

eligible for CAT protection because she failed to establish that it is more likely than not

that she would be tortured at the instigation of, or with the consent or acquiescence of, the

Indian government.

       With respect to her ineffective assistance claim, Patel argues that the BIA erred in

its conclusion that the procedural Lozada requirements had not been fulfilled. She argues

that her explanation for not filing a complaint was reasonable and therefore that

requirement should have been excused. The reasons Patel supplied are lack of language

proficiency and legal knowledge, distance from counsel, lack of adequate time, and

potential sanctions that may result from the filing of frivolous disciplinary complaints.



                                              7
       Patel’s new counsel, retained after the IJ’s decision, was responsible for helping

her to negotiate the immigration appeals system. The challenges she faced are the

challenges that are faced by many in immigration proceedings. If we were to accept the

explanation that there is not enough time to draft an appellate brief and complaint

concurrently, Lozada’s third procedural requirement would be rendered a nullity, because

every immigrant claiming ineffective assistance of counsel is faced with time constraints

and a presumed unfamiliarity with the U.S. legal system. After a de novo review of the

record, we agree with the BIA that Patel’s ineffective assistance claim is procedurally

barred.

       Even if the Lozada procedural requirements were met, the record lacks sufficient

evidence that Patel suffered prejudice as a result of her former counsel’s performance.

Patel asserts that her husband’s testimony in court was necessary, yet his affidavit fails to

link the threats to a public official or an individual the government is unwilling or unable

to control. Therefore, even with the aid of her husband’s testimony, Patel would have

failed to satisfy the requirements for asylum, withholding of removal, and relief under the

CAT. Finally, Patel claims her attorney erred by not arguing that the state-created danger

doctrine is applicable in her case. This argument also fails, as the state-created danger

doctrine is not applicable to immigration proceedings. Kamara v. Att’y Gen., 420 F.3d

202 (3d Cir. 2005).




                                              8
                                     IV.

For the foregoing reasons, we will deny Patel’s petition for review.




                                      9
