                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3031




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                     NO. 04-3031



                                   NURI MARKE,

                                                      Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent



                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                                    (A73-569-674)



                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 7, 2005

           Before: AMBRO, STAPLETON, and ALARCÓN 1 , Circuit Judges

                                (Filed: June 13, 2005 )




                                      OPINION



      1
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
ALARCÓN, Circuit Judge

       Nuri Marke, a native and citizen of Macedonia, formerly Yugoslavia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen.

He maintains that the BIA abused its discretion in rejecting his contentions that he was

denied the effective assistance of counsel and that country conditions had changed since

the Immigration Judge (“IJ”) denied his application for asylum. We deny the petition for

review because we conclude that his ineffective assistance of counsel claim was not

timely filed. We also hold that he has failed to demonstrate that changed country

conditions support his claim that he has a well-founded fear of persecution if he is not

granted asylum in the United States.

                                             I

       Mr. Marke entered the United States as a non-immigrant visitor in November 1988

with authorization to remain for six months. A notice to appear (“NTA”) was issued on

August 25, 1997. It alleged that Mr. Marke was removable because he remained in the

United States longer than permitted by his visa.

       At his removal proceedings, Mr. Marke conceded the allegations in the NTA and

applied for asylum and withholding of removal. On May 29, 1998, the IJ found Mr.

Marke removable and denied his application for asylum and withholding of removal. Mr.

Marke’s request for voluntary departure was granted. The IJ ordered Mr. Marke to depart


                                             2
voluntarily by July 18, 1998, and if he did not, that he be removed to Macedonia.

       Mr. Marke filed an appeal with the BIA on June 29, 1998. The BIA affirmed the

IJ’s removal order without opinion on July 10, 2002. The BIA also granted him thirty

days to depart voluntarily. The BIA’s decision was served on Robert J. Shannon, Mr.

Marke’s attorney of record.

       On May 20, 2004, Mr. Marke, represented by his present counsel, filed a motion to

reopen his removal proceedings. He alleged that Mr. Shannon’s representation was

ineffective because he failed to advise him that his appeal had been affirmed by the BIA

and that he had thirty days to depart voluntarily. He alleged that he did not depart within

the thirty-day period because he did not learn of the BIA’s order until several months

later. He further asserted that because of his former counsel’s ineffectiveness, he is barred

for ten years from receiving certain forms of relief, including adjustment of status.

                                              II

       Mr. Marke contends that the BIA erred in denying his motion to reopen for failure

to show prejudice from his former counsel’s negligence. The BIA also concluded,

however, that the claim of ineffectiveness of counsel was untimely under the ninety-day

time limit set forth in 8 C.F.R. § 1003.2(c)(2).1


       1
        8 C.F.R. § 1003.2(c)(2) provides:
       Except as provided in paragraph (c)(3) of this section, a party may file only
       one motion to reopen deportation or exclusion proceedings (whether before the

                                              3
       “[W]hen the Board or an Immigration Judge denies reopening on prima facie case

grounds, the ultimate decision should be reviewed for an abuse of discretion, while

findings of fact should be reviewed for substantial evidence.” Sevoian v. Ashcroft, 290

F.3d 166, 174 (3d Cir. 2002). Thus, “the administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B). “Discretionary 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. INS, 602 F.2d 608, 612 (3d Cir. 1979)).

       The BIA’s initial decision was issued on July 10, 2002. Mr. Marke did not file his

motion to reopen until May 20, 2004.

       Mr. Marke’s opening brief does not address the BIA’s alternative holding that his

motion to reopen was untimely, nor does he argue that the time for filing his motion to

reopen was tolled because of his former attorney’s alleged failure to inform him of the

BIA’s decision. “An issue is waived unless a party raises it in its opening brief, and for




       Board or the Immigration Judge) and that motion must be filed no later than
       90 days after the date on which the final administrative decision was rendered
       in the proceeding sought to be reopened, or on or before September 30, 1996,
       whichever is later. Except as provided in paragraph (c)(3) of this section, an
       alien may file only one motion to reopen removal proceedings (whether before
       the Board or the Immigration Judge) and that motion must be filed no later
       than 90 days after the date on which the final administrative decision was
       rendered in the proceeding sought to be reopened.

                                              4
those purposes a passing reference to an issue . . . will not suffice to bring that issue

before this court.” Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d

Cir. 1994) (citation and quotation omitted). Thus, Mr. Marke has waived any challenge in

this appeal to the correctness of the BIA’s determination that the motion to reopen based

on ineffectiveness was untimely. Accordingly, we do not consider the merits of the BIA’s

alternative holding that he was not prejudiced by his attorney’s alleged neglect.

       Mr. Marke’s motion to reopen is also based upon changed country conditions. That

claim is not barred by the time limitations set forth on 8 C.F.R. 1003.2(c) pursuant to 8

C.F.R. 1003.2(c)(3).2 Mr. Marke submitted evidence to the BIA that between January and


       2
         8 C.F.R. § 1003.2(c)(3) provides:
       In removal proceedings pursuant to section 240 of the Act, the time limitation
       set forth in paragraph (c)(2) of this section shall not apply to a motion to
       reopen filed pursuant to the provisions of § 1003.23(b)(4)(ii). The time and
       numerical limitations set forth in paragraph (c)(2) of this section shall not
       apply to a motion to reopen proceedings:
       (i) Filed pursuant to the provisions of § 1003.23(b)(4)(iii)(A)(1) or
       § 1003.23(b)(4)(iii)(A)(2);
       (ii) To apply or reapply for asylum or withholding of deportation based on
       changed circumstances arising in the country of nationality or in the country
       to which deportation has been ordered, if such evidence is material and was
       not available and could not have been discovered or presented at the previous
       hearing;
       (iii) Agreed upon by all parties and jointly filed. Notwithstanding such
       agreement, the parties may contest the issues in a reopened proceeding; or
       (iv) Filed by the Service in exclusion or deportation proceedings when the
       basis of the motion is fraud in the original proceeding or a crime that would
       support termination of asylum in accordance with § 1208.22(f) of this chapter.
                                                                                (continued...)

                                               5
July of 2001, violence had occurred in Macedonia as a result of conflict between

Albanian separatists and the Macedonian government. He submitted six additional

documents showing that (1) Macedonian police had conducted torture between January

2000 and October 2002, (2) the police had treated ethnic minorities badly, (3) twenty-

seven Albanians in transit were beaten or treated badly by the police, (4) tensions in

Macedonia continued in April 2004 when the Albanian flag was flown in Macedonia, (5)

government troops had committed grave abuses in an Albanian village in August 2001,

and (6) police abuse of Albanians continued the day that a framework peace agreement

was signed between the government and ethnic Albanians.

       The BIA held that Mr. Marke had not met his burden of explaining “how those

changes affect his claim for asylum.” Before this court, Mr. Marke contends that he

should not be “required to lead the agency like a small child, quote from each exhibit and

state with yet more ‘detail or specificity’ how the changed country conditions in

Macedonia affect his asylum claim . . . .” He has failed to explain in his petition for

review how the alleged changed country conditions affect his claim.

       The BIA was correct to place the burden of proof of changed country conditions

on Mr. Marke because Mr. Marke never established past persecution. See, e.g.,



       2
           (...continued)


                                              6
Ahmadshah v. Ashcroft, 396 F.3d 917, 920 (8th Cir. 2004) (noting that unless the

petitioner has established past persecution, he or she has the burden of proving changed

country conditions); Simtion v. Ashcroft, 393 F.3d 733, 737 (7th Cir. 2005) (dismissing

petitioner’s motion to reopen based on changed country conditions because petitioner

failed to explain how a ruler’s return to power created conditions different from those that

prevailed when the petitioner originally sought asylum); cf Berishaj v. Ashcroft, 378 F.3d

314, 326-27 (3d Cir. 2004) (holding that because petitioner had established past

persecution, the burden of proof regarding changed country conditions was placed on the

Government). The BIA did not abuse its discretion by holding that Mr. Marke had failed

to meet his burden of showing how changed country conditions would affect his claim for

asylum.

       For the foregoing reasons, we will affirm the BIA’s denial of the motion to

reconsider.




                                             7
