                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 15-1903
                                   _____________

                                   FITIM SYLAJ,
                                             Petitioner
                                        v.

        THE ATTORNEY GENERAL OF UNITED STATES OF AMERICA,
                                                    Respondent

                             _______________________

            On Petition for Review from the Board of Immigration Appeals
                              BIA-1 No. A089-253-969
              Immigration Judge: The Honorable Charles M. Honeyman
                             _______________________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 29, 2016

            Before: SMITH, HARDIMAN, and SLOVITER, Circuit Judges

                               (Filed: March 4, 2016)

                             _______________________

                                    OPINION*
                             _______________________




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

      This case comes to us on a petition for review of the Board of Immigration

Appeals’ denial of Fitim Sylaj’s motion to reopen and stay removal.           Sylaj’s

ground for reopening his removal proceeding is that his prior attorney provided

ineffective assistance of counsel by failing to argue on appeal to the BIA that Sylaj

was the victim of past persecution because his father attempted to murder him due

to his homosexuality. For the reasons stated herein, we will deny the petition for

review.

      Sylaj is a homosexual Muslim who was born in Kosovo in 1990. His friends

discovered his homosexuality when they witnessed him embrace a male German

tourist and enter the tourist’s apartment in September 2006. Afterwards, Sylaj’s

friends “offended him by calling him gay, mistreated him, and viewed him

differently.” Furthermore, “his classmates verbally threatened him by threatening

to kill him and stating that, ‘soon you will not come to school again.’” As a result,

Sylaj stopped attending school in November 2006, a fact that he hid from his

family until his teacher called his home inquiring as to his absences from school.

When his father went to talk to the teacher, he “heard some of his classmates call

[Sylaj] gay.”




                                          2
      Sylaj testified that on December 4, 2006, “his father attempted to kill him.”

His father entered the living room, came towards him, and said, “[y]ou caused us

shame. How can you do these things?” He then grabbed an ax from near the wood

stove “and ran towards [Sylaj] in order to hit him.” His mother jumped in front of

his father, and Sylaj ran out the door. Sylaj’s three siblings, who are not much

younger than he, were in the room during this incident. He arrived in this country

on December 23, 2006, and has resided with an uncle in Pennsylvania ever since.

      On December 21, 2007, Sylaj filed an application for asylum and for

withholding of removal. On September 22, 2009, the Department of Homeland

Security initiated removal proceedings, and Sylaj requested asylum, withholding of

removal, and protection pursuant to the Convention Against Torture based on his

past persecution and fear of future persecution due to his homosexuality. The

Immigration Judge, despite finding Sylaj to be “generally credible,” denied his

application for relief after determining that Sylaj had not suffered past persecution

and that there was no well-founded fear of future persecution. Relevant to this

petition for review, the IJ found that Sylaj’s father’s actions were unfulfilled death

threats that did not rise to the level of past persecution. The IJ determined that,

without further evidence from Sylaj detailing the nature or imminence of the harm,

either in the form of more details in his own affidavit or a supporting affidavit from

his mother or siblings, the evidence was insufficient to determine whether the
                                          3
threat was “sufficiently concrete, imminent, or menacing as to constitute past

persecution.”     Sylaj’s attorney appealed only the Immigration Judge’s

determination as to future persecution, which the BIA affirmed.

      Sylaj obtained new counsel, who filed a motion to reopen with the BIA

arguing that original counsel provided ineffective assistance for failing to argue on

appeal that the father committed attempted murder, which he alleges is per se past

persecution. The BIA disagreed and held that Sylaj had “not identified any factual

or legal error in the Immigration Judge’s conclusion that [Sylaj’s] father’s one time

attempted attack on [Sylaj], which resulted in no injury, does not rise to the level of

persecution on account of a protected ground.” This petition followed.1

      Our review of motions to reopen “is highly deferential: we review the denial

of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562

(3d Cir. 2004). Abuse of discretion occurs when the BIA’s decision is “arbitrary,

irrational, or contrary to law.” Id. The BIA’s factual findings are rejected only if

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

U.S.C. § 1252(b)(4)(B). Thus, we reverse only if “the evidence not only supports


1
  The BIA had jurisdiction over Sylaj’s motion to reopen pursuant to 8 C.F.R.
§ 1003.2(c). This Court has jurisdiction to review final orders of the BIA,
including the denial of a motion to reopen, pursuant to § 242(a)(1) of the INA, 8
U.S.C. § 1252(a)(1). Venue is proper in this Court because the IJ completed
proceedings in Philadelphia, Pennsylvania. See 8 U.S.C. § 1252(b)(2).
                                          4
[a contrary] conclusion, but compels it.” I.N.S. v. Elias-Zacarias, 502 U.S. 478,

481 n.1 (1992). When the BIA issues its own opinion, as it did in the appeal in this

case, “we generally review that decision as the final agency decision.” Green v.

Att’y Gen., 694 F.3d 503, 506 (3d Cir. 2012). However, when the BIA’s opinion

“invokes specific aspects of the IJ’s analysis and fact-finding in support of [its]

conclusions,” as it did in the denial of the motion to reopen, we review both the

decisions of the IJ and the BIA. Id.

      In removal proceedings, the right to effective assistance of counsel is

grounded in the Fifth Amendment’s guarantee of due process. Fadiga v. Att’y

Gen., 488 F.3d 142, 155 (3d Cir. 2007). An alien must successfully “show that

prior counsel’s deficient performance prevented him from reasonably presenting

his case and caused him ‘substantial prejudice,’” which is “a ‘reasonable

likelihood’ that the result of the removal proceedings would have been different

had the error(s) not occurred.” Contreras v. Att’y Gen., 665 F.3d 578, 584 (3d Cir.

2012).

      In this case, Sylaj claims that the BIA committed error when it failed to

consider his argument that his father had committed attempted murder. However,

the BIA relied on the IJ’s factual findings, which acknowledged that Sylaj testified

that “his father attempted to kill him.” While deeming Sylaj’s testimony to be

“generally credible,” the IJ determined that, without more evidence, the father’s
                                         5
actions amounted only to an “unfulfilled death threat” that did not cause actual

suffering or harm and was not sufficiently concrete or imminent. Thus, in relying

on the IJ’s decision, the BIA considered the argument that what occurred was

“attempted murder,” and instead agreed with the IJ that it was really an “unfulfilled

death threat” that did not rise to the level of past persecution. See Chavarria v.

Gonzalez, 446 F.3d 508, 519-20 (3d Cir. 2006).2

      Moreover, while we do not need to decide whether attempted murder is per

se persecution, we note that the cases cited in support of this argument involve

significantly more factual detail than the case before us. See Karki v. Holder, 715

F.3d 792, 804-05 (10th Cir. 2013) (past persecution included an assault rendering

the petitioner semi-unconscious, the seizure of property, an attempted car bombing,

and threats before and after the assault and car bombing); Sanchez Jiminez v. Att’y

Gen., 492 F.3d 1223, 1233 (11th Cir. 2007) (past persecution included death

threats, attempted kidnapping, and armed men on motorcycles shooting at the

petitioner in a moving car). For the foregoing reasons, we will deny the petition

for review.



2
  While the BIA’s analysis was brief, it “is not required to write an exegesis on
every contention.” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006)
(quoting Zubeda v. Ashcroft, 333 F.3d 463, 477 (3d Cir. 2003)). Instead, “the
BIA’s analysis merely must be adequate to allow for meaningful review” of its
decision. Id.
                                          6
