                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                             NOT PRECEDENTIAL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


                                   2
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.


                                    5
       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


                                    6
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.

                                     7
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).

                                    15
