                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3867
                                     _____________

                                    NAZMI RRANCI,
                                                        Petitioner

                                             v.

                           ATTORNEY GENERAL OF THE
                           UNITED STATES OF AMERICA,
                                                Respondent
                                  _____________

                    ON PETITION FOR REVIEW OF AN ORDER
                   OF THE BOARD OF IMMIGRATION APPEALS
                           (Agency No. A096-077-564)
                                ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 17, 2015
                                  ______________

           Before: SMITH, GREENAWAY, JR., AND SHWARTZ, Circuit Judges.

                                 (Filed: August 18, 2015)

                                     ______________

                                        OPINION
                                     ______________




       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Nazmi Rranci, a native and citizen of Albania, petitions for review of an order of

the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal

proceedings. We will deny the petition for review.

I.     Background

       Rranci was smuggled into the United States in January 2003 without being

admitted or paroled. He was initially detained by immigration officials, but was paroled

into the United States to assist in the investigation of a smuggling operation.

       Rranci applied for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (“CAT”). At his

immigration hearing, Rranci withdrew his applications and requested to leave voluntarily.

The immigration judge (“IJ”) granted voluntary departure, giving Rranci the opportunity

to leave the United States on his own. In the alternative, the IJ ordered him removed.

       Rather than leaving voluntarily, Rranci obtained new counsel and moved to reopen

his case. He argued that he had not agreed to voluntary departure and that his prior

counsel had provided ineffective assistance, which provides a ground sufficient for

reopening a case. He also argued that the “state-created danger” doctrine prohibited his

removal to Albania. The IJ denied the motion to reopen. Rranci appealed to the BIA,

which dismissed his appeal, finding that Rranci failed to satisfy the procedural

requirements for ineffective assistance of counsel claims, as put forth in In re Lozada, 19



                                             2
I. & N. Dec. 637, 639 (BIA 1988).1 On appeal, this Court disagreed, “hold[ing] that

Rranci satisfied the procedural requirements of Lozada.” Rranci v. Att’y Gen., 540 F.3d

165, 177 (3d Cir. 2008) (“Rranci I”). Accordingly, we “remand[ed] for the BIA to

consider the substantive aspects of error and prejudice with regard to Rranci’s claim of

ineffective assistance of counsel.” Id.2 Our Court also directed the BIA to consider in

the first instance whether Rranci was prejudiced by his counsel’s failure to set forth a

claim for relief from removal under the protocols of the United Nations Convention

Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“the

Convention”).

       On remand, the BIA found that even assuming Rranci’s counsel had committed

error, Rranci failed to establish that he had suffered any prejudice. The BIA accordingly

denied his motion to reopen. Rranci now petitions this Court for review of the BIA’s

decision.




       1
         To satisfy Lozada’s procedural requirements, “the allegedly aggrieved person
must (1) provide an affidavit attesting to the relevant facts, (2) inform former counsel of
the allegations and allow him an opportunity to respond, and (3) ‘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.’”
Rranci v. Att’y Gen., 540 F.3d 165, 177 (3d Cir. 2008) (quoting Lozada, 19 I. & N. Dec.
at 639).
       2
        This Court also found that Rranci’s state-created danger claim failed as a matter
of law. Rranci I, 540 F.3d at 171–72.

                                             3
II.     Analysis3

        In his petition, Rranci argues that the BIA erred in concluding that: (1) Rranci was

not prejudiced by his attorney’s errors;4 and (2) the objectives of the Convention are

satisfied through existing United States law. We address each of Rranci’s arguments in

turn.

        A.     Prejudice

        Rranci argues that if he had received adequate representation, he would have

proceeded to a hearing on the merits of his claims and would have had the opportunity to

supplement the record. Rranci contends that the absence of such an opportunity,

regardless of whether he has made a prima facie showing of eligibility for any form of

relief or protection, is sufficient to demonstrate a reasonable probability of a different



        3
        We have jurisdiction over final orders of removal under § 242(a)(1) of the INA,
8 U.S.C. § 1252(a)(1). We review the BIA’s denial of Rranci’s motion to reopen under
the abuse of discretion standard. In other words, “[t]he BIA’s denial of a motion to
reopen may only be reversed if it is ‘arbitrary, irrational, or contrary to law.’” Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (quoting Sevoian v. Ashcroft, 290 F.3d 166,
174 (3d Cir. 2002)). We review the BIA’s legal conclusions de novo, including both pure
questions of law and applications of law to undisputed facts. Francois v. Gonzales, 448
F.3d 645, 648 (3d Cir. 2006).
        4
         Rranci also argues that the BIA applied the incorrect legal standard to evaluate
the prejudice prong of his ineffective assistance of counsel claim. For an alien to
demonstrate that he suffered prejudice, “he must show that there was a reasonable
likelihood that the result would have been different if the errors had not occurred.”
Rranci I, 540 F.3d at 176 (internal quotation marks and alterations omitted). Here, the
BIA expressly applied that standard and concluded that Rranci failed to “establish a
reasonable likelihood that [he] would have prevailed on his applications for asylum and
withholding of removal if not for prior counsel’s errors.” App. 10. Accordingly, we find
no basis in the record to support Rranci’s claim that the BIA applied an incorrect legal
standard.

                                              4
result. In support of his argument, Rranci cites to Fadiga v. Attorney General, 488 F.3d

142 (3d Cir. 2007), and offers the novel proposition that this Court is only obligated “to

determine if there is a reasonable likelihood that the result would have been different, not

opposite nor better, just different.” Pet’r Br. 20. Rranci’s reliance on Fadiga is

misplaced.

       In Fadiga, this Court clarified the appropriate test for determining prejudice in the

context of removal proceedings. There, the Court concluded that the “‘reasonable

likelihood’ standard—or its equivalent, the ‘reasonable probability’ standard—is also

appropriate to the prejudice inquiry.” 488 F.3d at 159 (footnote omitted). Furthermore,

the Court held that the reasonable likelihood standard “requires the alien to show not just

that he received ineffective assistance in his removal proceedings, but that the challenged

order of removal is fundamentally unfair, because there is a significant likelihood that the

IJ would not have entered an order of removal absent counsel’s errors.” Id. (emphasis

added).

       Here, there is not a significant likelihood that the IJ would have entered an order

of removal absent counsel’s errors. As correctly held by the BIA, Rranci has failed to

demonstrate prima facie eligibility for asylum, withholding of removal, or protection

under CAT. Rranci has not challenged any of these conclusions in his petition.

Accordingly, Rranci has failed to establish that he was prejudiced.

       B.     The Convention

       On remand, the BIA held that, contrary to Rranci’s arguments, “the [Convention]

and its protocols do not create an independent basis for relief from removal that can be

                                             5
advanced in removal proceedings. Accordingly, [Rranci] was not prejudiced by attorney

Carabello’s failure to advance a claim against removal under the [Convention] and its

protocols before the [IJ].” App. 7. Furthermore, the BIA found that “the objectives of

the [Convention] concerning the protection of witnesses and trafficking victims are

advanced through existing legislation . . . . More specifically, the immigration laws and

regulations offer certain aliens who are victims of, or informants and witnesses against a

criminal organization eligibility for S, T, or U nonimmigrant status, if they satisfy other

eligibility requirements and obtain the approval of the DHS.” App. 7.

       In his petition, Rranci does not challenge the BIA’s conclusion that the witness

protection provisions of the Convention do not create any enforceable rights in agency

removal proceedings or in the courts. In addition, Rranci does not challenge the BIA’s

conclusion that Rranci was not prejudiced by his counsel’s failure to advance a claim

against removal under the Convention. Instead, Rranci argues that “[t]he [BIA]

incorrectly concluded that the objectives of the [Convention] are satisfied through”

existing United States law. Pet’r Br. 20.

       As we noted in Rranci I, the Convention is relevant to a determination of “the

degree to which Rranci may have been prejudiced by his prior counsel’s decision to

recommend [foregoing] a hearing and accepting voluntary departure.” 540 F.3d at 179.

As noted, the BIA found that the Convention does not create any independent basis for

relief from removal that can be advanced in removal proceedings. Rranci has put forth

no argument to challenge that ruling. In the absence of any right to relief under the

Convention, Rranci cannot establish that he was prejudiced by his attorney’s failure to

                                              6
raise a claim under the Convention. Accordingly, we will deny the petition for review as

to Rranci’s claim brought under the Convention.

III.   Conclusion

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




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