                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2007

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Precedential or Non-Precedential: Precedential

Docket No. 05-4910




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                          __________

                          No. 05-4910
                          __________

                      SORIBA FADIGA,

                           Petitioner

                               v.

                 ATTORNEY GENERAL USA,

                          Respondent
                          __________

               On Petition for Review of an Order
              of the Board of Immigration Appeals
                     (BIA No. A76-550-629)
          Immigration Judge: Hon. Charles M. Honeyman

                   Argued November 27, 2006
                           ______

Before: FUENTES and GARTH, Circuit Judges, and POLLAK,*
                     District Judge
                        ______

                     (Filed: June 15, 2007)
                             ______




      *
         Honorable Louis H. Pollak, District Judge for the United
States District Court of the Eastern District of Pennsylvania,
sitting by designation.
Daniel G. Anna, Esquire (argued)
Anna & Anna, P.C.
533-A Darlington Road
Media, PA 19063

Counsel for Petitioner

Patrick L. Meehan, Esquire
United States Attorney
Robert A. Zauzmer, Esquire
Assistant United States Attorney, Chief of Appeals
Emily McKillip, Esquire (argued)
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street Suite 1250
Philadelphia, PA 19106

Richard M. Evans, Esquire
Nancy E. Friedman, Esquire
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044

Counsel for Respondent

                             ______

                  OPINION OF THE COURT
                          ______

POLLAK, District Judge:

       On May 7, 2004, an Immigration Judge (IJ) ordered that
Soriba Fadiga be removed to Guinea. Fadiga moved to reopen the
removal proceedings, Fadiga’s counsel acknowledging that he had
provided ineffective assistance in presenting Fadiga’s application
for asylum and withholding of removal under the Immigration and
Nationality Act (INA) and protection under the Convention

                                2
Against Torture (CAT). Before the IJ could rule on the motion to
reopen, new counsel appealed the order of removal to the Board of
Immigration Appeals (BIA). The BIA considered the motion to
reopen filed in the Immigration Court as a motion to remand and
denied the appeal and the motion, concluding in part that Fadiga
had not shown “prima facie eligibility for either withholding of
removal under section 241(b)(3) of the [INA] or protection
pursuant to the Convention against Torture,” and that “as a
result . . . [Fadiga] has [not] demonstrated that he has been
prejudiced by the actions of his former attorney.” E.R.1 at 5 (BIA
Dec.). In support of its conclusion, the Board found “with regard
to [Fadiga’s] application for withholding of removal under [the
INA] . . . the record fails to establish that it is ‘more likely than not’
that he would be in danger of future persecution.” Id. The Board
also found “that [Fadiga] has failed to demonstrate his eligibility
under the Convention Against Torture,” because “the record is
devoid of any evidence that [Fadiga] has ever been tortured in the
past, [and] there is also is [sic] insufficient evidence to demonstrate
a clear probability that he would be subject to future torture in
Guinea.” Id.

       Fadiga now petitions this court for review of the BIA’s final
order of removal as to his claims for withholding under the INA
and protection under the CAT.2 Upon examination of the BIA’s
decision and order, we conclude that the Board abused its
discretion in denying Fadiga’s motion to reopen/remand.
Therefore, for the reasons stated below, we will grant the petition,
vacate the decision and order of the BIA, and remand to the agency
with directions to reopen Fadiga’s case. In addition, we take this
opportunity to clarify the analytical framework for claims of
ineffective assistance of counsel in removal proceedings.




         1
         The abbreviation “E.R.”refers to the excerpt of record
provided by the petitioner (in an appendix to his brief); “A.R.”
refers to the full administrative record.
         2
             Fadiga does not challenge the denial of his asylum
claim.

                                    3
I. BACKGROUND

        In reviewing Fadiga’s underlying claim of ineffective
assistance of counsel, the details of the proceedings before the
IJ—specifically, the hearing on Fadiga’s application for asylum, or
in the alternative withholding of removal, or in the alternative
protection under the CAT3 [hereinafter “application for asylum” or
“application”]—are of primary concern. Therefore, in this section
of the opinion, we (1) summarize the procedural history of the case,
(2) describe in some detail the evidence and arguments presented
to the Immigration Court and the IJ’s oral decision, and (3) outline
the supplementary evidence sought to be submitted to the BIA and
the BIA’s decision affirming the denial of Fadiga’s application for
asylum and denying Fadiga’s motion to reopen/remand.

A. Procedural History

       Soriba Fadiga entered the United States on April 21, 1991
on a non-immigrant visa that expired May 31, 1991. On September
10, 2002, the INS issued and served on Fadiga a Notice to Appear
alleging that he was a non-immigrant who had overstayed his visa.
Fadiga conceded removability on this ground, but filed an
application for asylum under section 208 of the INA, 8 U.S.C.
§ 1158, withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. § 1231(b)(3), and protection under Article III of the
CAT. 4      See supra note 3.            A hearing on this
application—denominated a Form I-589—was held on May 7,
2004. At the conclusion of the hearing, the IJ issued an oral
decision denying the request for asylum as time-barred, denying


       3
          On February 3, 2003, Fadiga filed a single document
(Form I-589, see A.R. at 300) requesting these three forms of
relief in the alternative.
       4
        See United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the
United States by the Foreign Affairs Reform and Restructuring
Act, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-822 (1998)
(codified as Note to 8 U.S.C. § 1231).

                                 4
the requests for withholding of removal under the INA and
protection under the CAT on the merits, and ordering Fadiga
removed to Guinea.

       On May 26, 2004, through his original counsel, Daniel Pell,
Fadiga filed a motion in the Immigration Court seeking to reopen
the removal proceedings. But on June 4, 2004, Fadiga—now
represented by new counsel, Ryan Osborne—filed a notice of
appeal with the BIA. As authorized by 8 C.F.R. § 1003.2(c)(4), the
BIA then took jurisdiction over both the appeal and the motion to
reopen, considering the latter as a motion to remand. The sole
ground of the appeal and of the motion to reopen was the alleged
ineffective assistance provided by Pell. On October 6, 2005, a
single member of the BIA filed a three-page decision and order
dismissing Fadiga’s appeal and denying the motion to
reopen/remand.5

B. Proceedings before the Immigration Court

       1. Substantive evidence presented

       At the merits hearing on May 7, 2004, Fadiga submitted
evidence in the form of his own testimony, as well as several
exhibits. Fadiga’s testimony presented, in relevant part, the
following set of facts:

       Soriba Fadiga, who was 44 years old at the time of the 2004
hearing, is a native and citizen of Guinea, a Muslim, and an ethnic


       5
         Although the fact that the BIA “consider[ed Fadiga’s]
motion [to reopen] as a motion to remand” creates some
ambiguity of terminology, it has no substantive effect on our
review. “We consider [motions to reopen and motions to
remand] as equivalent for jurisdictional and standard of review
purposes . . . . Both devices require the proceedings to be
reopened, . . . and as such they are functionally identical.”
Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005); accord
In re L-V-K-, 22 I. & N. Dec. 976, 978 (BIA 1999) (en banc).
For the sake of clarity and consistency, in the balance of this
opinion we refer to Fadiga’s motion as a “motion to reopen.”

                                5
Mandingo. He claimed to have been to be a close relative of Sékou
Touré, the first president of independent Guinea, who held that
office from 1958 until his death in 1984. From at least the early
1980s, Fadiga was active in Sékou Touré’s political party, the
PDG,6 serving as a regional secretary of youth. Shortly after Sékou
Touré died, a coup ousted the PDG from power and installed a new
president, Lansana Conté. Whereas Sékou Touré, like Fadiga, had
been of Mandingo or Malinké ethnicity, Lansana Conté was an
ethnic Soussou.

       At the May 7, 2004 hearing, Fadiga was, according to the IJ,
“quite animated about [political] problems that his family had”
after the PDG lost power, including the politically motivated
murder of at least one relative, Fadiga’s uncle Ismail Touré. E.R.
at 21 (Oral Dec. of IJ). Fadiga testified that, as a result of these
problems, his father left Guinea for Côte d’Ivoire in or around
1986. As to his own political problems, Fadiga further testified
that he had been a founding member of a post-coup, opposition
party—the RPG, led by Alpha Condé—and that, after “problems
associated with the 1990 elections,” he too was at risk. Id. at
20–21. For this reason, in early 1991, Fadiga also fled to Côte
d’Ivoire. Soon after Fadiga’s departure, an arrest warrant was
issued for him by the Guinean government, apparently on a charge
of “public disorder.” See A.R. 403 (purported arrest warrant
stating charge as “pour désordre publique”). From Côte d’Ivoire,
Fadiga was able to pay money to procure a fraudulent Guinean
passport and United States visa. He traveled to the United States
from Côte d’Ivoire in April 1991. Fadiga continued to be “actively
involved” with the RPG party in the United States, through his
involvement in the expatriate Guinean community, and he has
participated in demonstrations here against President Conté. E.R.
at 22–23 (Oral Dec. of IJ).

       Fadiga asserted at the May 7, 2004 hearing that he “fear[ed]
being arrested, tortured, or killed” if he were to return to Guinea
and that he was “100% sure” that he would be arrested at the


       6
         The full appellations associated with various Guinean
political-party acronyms were a source of controversy at the
hearing, as discussed below in note 8 and the accompanying text.

                                 6
airport and taken to prison. Id. at 18 (IJ’s summary of Fadiga’s
testimony). He cited his Mandingo tribal roots, his family’s
political affiliation, his former position as a youth leader of an
opposing political party (the PDG), his subsequent RPG
membership, and his continuing protest activity while in the United
States as factors which would cause him to be targeted by the
Conté regime.

        The evidence offered by Fadiga in support of the above
testimony included, in relevant part, six documents from
governmental and non-governmental agencies and the media
regarding human rights abuses in Guinea, and three additional
documents offered to corroborate Fadiga’s version of the facts.
The corroborating documents were (1) a purported original
Guinean arrest warrant issued against Fadiga on January 5, 1991;
(2) a document dated January 3, 1993, purportedly showing Fadiga
to be a member of the “RPG” political party; and (3) a second
document verifying Fadiga’s affiliation with the RPG as of October
15, 2003.7

       2. Discrepancies in the evidence

        The IJ found “dramatic inconsistencies” between Fadiga’s
testimony and his application for asylum. E.R. at 34; see also id.
at 23 (noting “glaring discrepancies between [Fadiga’s] application
for asylum and his testimony in court”). However, Fadiga claimed
before the IJ, and continues to claim, that these discrepancies
resulted not from mendacity or inconsistencies in his memory, but
from errors made by counsel. The discrepancies at issue relate to
at least the following matters:

•      Education The IJ found the testimony as to Fadiga’s early
       education “somewhat confusing” and noted significant


       7
         The arrest warrant is described in the IJ’s oral decision
as being issued “January 5, 1981,” and the first RPG certificate
is described as “dated January 3, 1983.” E.R. at 10. However,
the administrative record reflects that the years should read
“1991” and “1993.” See A.R. at 400–404; see also Respt.’s Br.
8 n.5, 10.

                                 7
      discrepancies in the dates of attendance and the names of
      schools between the application for asylum and Fadiga’s
      testimony at the hearing. E.R. at 19, 24; Respt.’s Br. 8 n.3.
      As discussed below, Fadiga attributed the inconsistency to
      attorney error in filling out the asylum application. He also
      claimed that the “Gamal Abdel Nasser University” referred
      to in his testimony was merely another name for the
      “College de Garçons” listed in the application. E.R. at 24
      (Oral Dec. of IJ); A.R. 216–18 (Tr. of May 7, 2004 Hr’g);
      Respt.’s Br. 8 n.3.

•     Fadiga’s familial relation to Sékou Touré The IJ found the
      testimony to be unclear as to whether Fadiga was a nephew
      or a cousin of Sékou Touré.

•     Guinean Political Parties There was confusion at the
      hearing regarding the various Guinean political parties, and
      whether Fadiga’s testimony about them was consistent and
      credible.    See E.R. at 18–19 (Oral Dec. of IJ)
      (“[R]espondent gave various names for the parties in
      attempting to explain their differences and similarities.”);
      A.R. at 172, 174–75, 179–83, 234–35 (Tr. of May 7, 2004
      Hr’g); see also Respt.’s Br. 7–9. Based on the record, as
      well as reported cases of this and other Circuits addressing
      similar claims, it appears that the parties actually involved
      were the PDG (Sékou Touré’s ruling party prior to the
      coup) and the RPG (one of the main opposition parties,
      founded after the 1984 coup and led by Alpha Condé).8


      8
       “PDG” stood for “Parti Démocratique de Guinée”
(“Democratic Party of Guinea” or “Guinean Democratic Party”).
See A.R. at 442.

        “RPG” appears to stand for “Rassemblement du Peuple
de Guinée.” See A.R. at 401, 407 (membership documents
submitted by Fadiga); A.R. at 429 (excerpt of Amnesty
International 2000 country report for Guinea), available at
http://web.amnesty.org/report2000/countries/; see also Dia v.
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). However,
what appears to be the same party has been referred to by other,

                                8
      However, the IJ noted that the application for asylum
      “suggested” that Fadiga was a member of the “RPR” or
      “Rassemblement Pour Republique”—a party that apparently
      does not exist in Guinea. E.R. at 27; see also Respt.’s Br.
      7–9.9 Again, Fadiga attributed the discrepancy to attorney
      error.

•     Timing of Fadiga’s move to Ivory Coast Although Fadiga
      claimed to be the youth secretary of his political party in
      Guinea from 1984 to 1991, his application “suggests he was
      in the Ivory Coast” at that time. E.R. at 23 (Oral Dec. of
      IJ); Respt.’s Br. 9. Fadiga claimed that the application must
      have been meant to refer to his father’s presence in the
      Ivory Coast.

      As to all of the above inconsistencies, the IJ stated that



related French names. E.g., Makhalou v. Gonzales, 173 Fed.
App’x 378, 379 (6th Cir. 2006) (“Rassemblement Pour La
Guinee (RPG)”).

        Moreover, the English translation of the RPG’s name
varies widely, even among the documents and published reports
found in the record. Compare A.R. at 401 (notarized translation:
“People Rally of Guinea (R.P.G.)”), with A.R. at 406 (notarized
translation by different translator: “Rally for the People of
Guinea”), and A.R. at 416 (U.S. State Dept. 2003 country report
on Guinea: “Guinean People Party (RPG)”), and A.R. at 429
(Amnesty International country report, supra: “Guinean People’s
Rally”), and A.R. at 426 (June 11, 2003 BBC News article:
“Rally for Guinean People (RPG)”), available at
http://news.bbc.co.uk/2/hi/africa/2982066.stm. See also Dia,
353 F.3d at 245 (“‘Rally of the People of Guinea Party’ or
‘RPG’”); Camara v. Gonzales, 166 Fed. App’x 840, 841 (6th
Cir. 2006) (“Guinean People’s Gathering Party (‘RPG’)”); Toure
v. Ashcroft, 400 F.3d 44, 45 (1st Cir. 2005) (per curiam)
(“Reunion for the People of Guinea (‘RPG’)”).
      9
       The record does, however, show that Guinea has a
“PRP” (“Party for Renewal and Progress”). See A.R. at 35.

                                9
Fadiga “essentially blamed his attorney and his attorney’s staff,”
citing errors in the preparation of the application, which Fadiga did
not review before it was filed. E.R. at 24. The IJ further noted
that, when pushed on cross-examination about why he hadn’t
produced more evidence in support of his claims, Fadiga responded
“that if he had known or been told by anybody, he would have
produced many witnesses and much more in the way of evidence.”
Id. at 25; see also, e.g., A.R. at 239 (Tr. of May 7, 2004 Hr’g).10

         3. Fadiga’s representation by original counsel, Daniel
    11
Pell

        Fadiga and his original counsel, Daniel Pell, stated at the
hearing that neither of them had reviewed Fadiga’s application with
care, either before filing the application or in preparation for the
hearing. Fadiga repeatedly insisted that all of the mistakes in the
application should be attributed to the preparers. When asked
about his contacts with his counsel, Fadiga initially stated that he
had spoken by telephone with Bonnie Shue, a secretary in Pell’s
office, and then met with Shue and Pell at Pell’s office to prepare
the application for asylum.

       However, after a break in testimony and a chance for Fadiga
to confer with counsel, Pell made a proffer to the court that Fadiga
had met with a law student who was working in Pell’s office at the


         10
          Fadiga: “[I]f I knew that I could bring people with me
in here, it was going to be more than 100 to come . . . especially
my family.” IJ: “Did you talk to your lawyer about how you
were going to prepare to prove your case?” Fadiga: “If he told
me to bring people, I would bring, I would bring . . . . even our
[RPG] secretary in New York. I was gonna bring all of them
here, but I didn’t know that. If I know that I was gonna bring
them.”
         11
         Much of this information was elicited on redirect of
Fadiga by the IJ, who, though “very careful not to tread on”
attorney-client privilege, nevertheless felt that, since Fadiga had
placed his representation at issue, Fadiga necessarily had made a
limited waiver of the privilege. E.R. at 26 (Oral Dec. of IJ).

                                 10
time.12 Pell stated that “[t]here have been issues in other cases with
regard to the adequacy of [the student’s] preparation of I-589’s,”
and that the law student’s involvement in the preparation of the
application “may or may not account for the discrepancies”
between the application and Fadiga’s testimony. A.R. at 241 (Tr.
of May 7, 2004 Hr’g). Pell further stated, as a “separate issue,”
that “had [Fadiga] known that he should have produced
witnesses . . . we would have and can produce at least four
witnesses.” Id. The IJ, however, rejected a proffer of the names
and addresses of those witnesses, stating that it “was really to [sic]
late” and that such matters would be more appropriately raised in
a motion to remand. E.R. at 28 (Oral Dec. of IJ); see also A.R. at
242–43 (Tr. of May 7, 2004 Hr’g).

       4. The IJ’s findings and decision

        In his oral decision, announced at the conclusion of the May
7, 2004 hearing, the IJ denied the application in its entirety, finding
that Fadiga had not met his burden of proof as to asylum,13
withholding of removal, or CAT protection. While not making an
explicit adverse credibility finding, the IJ repeatedly referenced
“[t]he credibility issues [which] on their face abound in this case.”
E.R. at 34. Specifically, the IJ cited “dramatic inconsistencies” as
to Fadiga’s educational history and his country of residence
between 1984 and 1991, as well as the “mentioning of a [political]
party on the application for asylum that does not even exist in
Guinea.” E.R. at 34; see supra Part I.B.2. The IJ was less
concerned about Fadiga’s fraudulent passport and visa, because of
the evidence indicating rampant corruption and ease of obtaining
purportedly authentic official documents in Guinea. However, the


       12
         It is unclear from Pell’s statement whether Pell meant
that Fadiga only met with the law student, or met with the law
student in addition to meeting with Pell and Shue.
       13
          The IJ’s primary holding as to the asylum claim was
that Fadiga’s application was time-barred, but the IJ also held, in
the alternative, that the asylum claim failed on the merits. As
noted above, see supra note 2, Fadiga does not challenge the
denial of his asylum claim.

                                  11
IJ found that this same apparent unreliability of Guinean
documents undercut much of the probative value of the purported
arrest warrant and RPG party membership records—particularly
since these were “documents not supported by detailed affidavits
or testimonial corroboration.” E.R. at 34. Although he noted his
“concerns about what perhaps could have been presented on this
record but was not,” the IJ concluded that “[o]n this record, . . .
[Fadiga] has not met his burden of proof and persuasion for
asylum . . . [or] for withholding of removal,” and, under “[a]
separate analysis[,] . . . [Fadiga] has not proven that he is more
likely than not to be tortured.” Id. at 36.

       Notwithstanding his finding of substantial infirmities in the
proof, the IJ repeatedly expressed concern about the quality of
Fadiga’s legal representation, stating, in part, that

       [Fadiga,] throughout his testimony, seemed to be
       completely surprised that there would be any
       additional evidence required of him to meet his
       burden of proof. . . . [He] claims he did not know
       any other evidence should have been produced and
       [that he] could certainly do so.

               [Fadiga] has made very serious allegations
       and the Court is concerned about this record. . . .
       Obviously, there are major credibility issues in this
       case, but both in terms of credibility and burden of
       proof, [Fadiga] essentially is blaming his attorney
       and his office. Throughout his testimony, [Fadiga]
       never blamed his attorney directly, but it is certainly
       without dispute that an attorney’s office’s obligation
       is to avoid negligence and ineffective assistance of
       counsel.

Id. at 34; see also id. at 28 (“This is not an easy case for the Court
to decide because of the preparation issues raised by
[Fadiga] . . . .”).14


       14
          The tenor of the IJ’s discussion and reasoning is
reflected in a longer excerpt from the oral decision:

                                 12
       Noting that Daniel Pell, the lawyer representing Fadiga at
the May 7, 2004 hearing, appeared frequently before the
Immigration Court and that Pell had presented a “very serious
analysis” of other issues in Fadiga’s case, the IJ “hesitate[d] to
conclude that this particular attorney has done anything that would
be considered ineffective assistance of counsel” with respect to the
application for asylum. Id. at 35. Moreover, the IJ emphasized
that he had taken into account all evidence submitted up to the
deadline of ten days prior to the hearing. Id. at 38. Although


       In preparing for this case, this Court could only
       assume that the evidence in Exhibit 6 [i.e., the
       documents described above, supra text
       accompanying note 7], coupled with [Fadiga’s]
       testimony, was the evidence that [Fadiga] sought
       to present in presenting his case at the individual
       calendar hearing this date.

               Prior to issuing this decision, counsel for
       [Fadiga], in effect, urges that the additional
       evidence be permitted or that [Fadiga] could have
       easily . . . presented such evidence, but he simply
       didn’t know. It is certainly strange (indiscernible)
       absent additional evidence that was not presented
       today, to determine what exactly went on between
       [Fadiga] and his attorney that, according to
       [Fadiga], led [Fadiga] to have absolutely no idea as
       to what burden of proof meant in these
       administrative proceedings. The Court has
       concerns about what . . . could have been
       presented . . . but was not. On the other hand, in
       light of the ease [of obtaining the fraudulent
       passport] . . . the Court cannot inherently rely on
       the arrest warrant and the RPG documents to
       assume that everything that [Fadiga] is stating is
       true, and that everything that resulted in
       evidentiary gaps can merely be attributed to his
       counsel’s staff.

E.R. at 35–36.

                                13
evidence could be submitted after the deadline “for good cause,”
the IJ did “not find good cause in these proceedings that the
respondent didn’t know he had a responsibility to meet his burden
of proof and had an opportunity to submit both testimonial
evidence, documentary evidence or other forms of corroboration.”
Id. Thus, although the IJ seemed well aware that this was a close
case likely destined for review, see id. at 37 (“A reviewer of this
record . . . [will] have to determine whether or not the evidence
presented in these proceedings, given [Fadiga’s] testimony and the
representations of counsel, resulted in a fundamentally fair
hearing.”), he concluded, “[a]s of today, the Court does not find
that the fundamental[] fairness prescription has been abrogated.”
Id. The IJ noted, however, that the BIA might be presented with
additional evidence justifying remand for “additional proceedings.”
Id. at 38.

C. The BIA’s review

       Fadiga filed a timely appeal with the BIA, and the BIA also
took jurisdiction over Fadiga’s motion to reopen. See supra Part
I.A. Fadiga was represented on appeal by new counsel, Ryan
Osborne, and raised a single claim of ineffective assistance of
counsel. In support of his claim, Fadiga offered affidavits from
himself, from several potential corroborating witnesses, and from
his former counsel, Daniel Pell.

       1. The affidavits

       In addition to seven witness affidavits supporting his
substantive claims for asylum, withholding and CAT protection,15
Fadiga submitted affidavits from himself and former counsel
Daniel Pell as evidence of the alleged ineffective assistance of
counsel at the Immigration Court hearing.

       Pell, according to his affidavit, had, as of 2004, been
practicing law for twenty-nine years and had never been the subject


       15
         The statements of the seven witnesses were identical
and corroborated Fadiga’s account of his background in Guinea
and his political affiliations. See A.R. at 38–51.

                                14
of discipline or censure. Pell attested that Fadiga met with Pell’s
assistant, a law student, on one occasion, in late 2002 or early
2003, for the purpose of preparing the Form I-589; that he (Pell)
was not present at this meeting; and that he later relied on the
student’s work, “erroneously” assuming the application to be
complete and accurate. E.R. at 40 (Pell Aff.) ¶ 7. Because of this
erroneous assumption, Pell failed to review the Form I-589 with
Fadiga when they met in Philadelphia prior to a master calendar
hearing on February 5, 2003—nor did he advise Fadiga to review
the Form I-589 before signing it. At that meeting, Pell simply
collected money orders from Fadiga for the filing fees and
presented Fadiga with the typewritten form to sign. Pell later met
with Fadiga in March 2004 to review his case and wrote to Fadiga
on March 31, 2004 advising him of the date of the merits hearing


       and of the need for him to bring to my office “any
       additional written evidence that you have and we can
       review the country conditions in your case. If you
       have any letters, video tapes, or any evidence of any
       nature that you want to submit, you must bring it
       along, with two (2) copies of each document or tape,
       video tape or other document with you to the office.”

Id. at 41 (Pell. Aff.) ¶ 9. Fadiga did deliver documents (i.e., the
exhibits submitted to the IJ) to Pell, but Pell is “certain” that they
did not “review the contents of [Fadiga’s application], or discuss
in detail any issues of testimony or proof.” Id. ¶ 10.

        On May 6, 2004—the day before the merits hearing—Pell,
according to his affidavit, met with Fadiga for forty-five minutes,
“reviewing the ‘country conditions’ and the general nature of his
claims,” but “for some unknown reason [Pell] did not ask [Fadiga]
to review his [application].” Id. ¶¶ 11–12. “Further, [Pell] did not
advise Mr. Fadiga to produce witnesses or declarations regarding
his familial ties to former President . . . Sekou Toure, his
membership in the R.P.G., . . . the treatment of R.P.G. members by
the government, or . . . treatment of [Touré’s] family members . . .
by the government.” Id. ¶ 13. Pell, therefore, was “completely
surprised and taken aback by the factual contradictions between
[the application] and [Fadiga’s] testimony at the merits hearing.”

                                 15
Id. ¶ 12. Pell stated in his affidavit that—had he in fact reviewed
the application for asylum with Fadiga—“the problems with the
factual inconsistencies . . . would have been cured prior to the
merits hearing.” Id. ¶ 14. Specifically, the “fact[s] that [Fadiga]
never left Guinea before 1991” and that his party was called RPG
and not RPR, as well as “the correct names and dates of the
educational institutions he attended[,] would have been established
of record without contradiction.” Id. Furthermore, Pell was “quite
certain . . . that Mr. Fadiga could and would have produced
witnesses or affidavits or declarations to prove his familial
relationship to Sekou Toure”; the treatment of Touré family
members by “the government of Lasana Conte, the President for
Life of Guinea”; Fadiga’s membership in the RPG; and the
treatment of “members and/or officials of the R.P.G. by the
government.” Id. ¶ 15. Pell based the latter statement on the fact
that “at least 5 or 6 members of the [Philadelphia] Guinean
community appeared in the Courtroom to support” Fadiga at an
earlier hearing in York, Pennsylvania. Id.

        Pell concluded his affidavit by “sincerely apologiz[ing]” for
“not having been more thorough,” noting that “I know better,” and
offering “[n]ot by way of excuse, but only by way of explanation”
his belief at the time that the documents from the RPG officials and
the arrest warrant “should have sufficed to establish the necessary
evidentiary nexus between Mr. Fadiga and the R.P.G.” Id. at 42
(Pell Aff.) ¶¶ 16–17. However, he noted that this belief was “of no
avail” due to the “shadow . . . cast over [Fadiga’s] credibility, when
he testified contrary to many important items contained [in the
application].” Id. ¶ 17.

       While Fadiga’s affidavit largely conformed to the facts
stated by Pell in his affidavit, it also added several new facts. In
particular, Fadiga attested that on May 6, 2004—the day before the
hearing—Pell raised with him the possibility of having a particular
witness testify on his behalf, and that Fadiga told Pell that this
would not be possible on short notice. Fadiga also reiterated that
“[a]t no time prior to the merits hearing did Attorney Pell advise
me to review my written applications for relief, or the importance
of such a review,” E.R. at 44 (Fadiga Aff.) ¶ 13; that “Attorney Pell
never advised me to . . . [submit witnesses or affidavits] concerning
my familial relationship to Sekou Toure or my membership in the

                                 16
R.P.G.,” id.; and that Pell “led me to believe that submitting
documents to the Court [i.e., the three documents discussed above,
supra text accompanying note 7] would be sufficient to establish
my membership in the R.P.G., and the fact that I am wanted by the
Government of Guinea for arrest.” Id. ¶ 14. Finally, Fadiga stated
in his affidavit that “[h]ad I been advised by my attorney” to bring
witnesses or obtain “letters, affidavits or declarations” concerning
the various elements of his claims for relief, “I could and would
have produced many such witnesses, declarations, or affidavits,”
id. at 44–45 (Fadiga Aff.) ¶ 15, and that “had I been advised by my
attorney, Daniel Pell, to carefully review the [application for
asylum], I would have done so, and would have corrected the
written application to reflect” the account presented at the hearing.
Id. at 45 (Fadiga Aff.) ¶ 16.

       2. The BIA decision

         The BIA, in a decision and order dated October 6, 2005,
found that, regardless of whether Fadiga had met the procedural
requirements for advancing an ineffective-assistance-of-counsel
claim or whether he had demonstrated that his counsel’s
performance was deficient, his motion had to be denied because he
had not been prejudiced by any such deficient performance. As to
the asylum claim, the BIA found that there was no prejudice
because that claim was time-barred. As to withholding of removal
under the INA, the Board found that, even assuming the
inadequacy of Fadiga’s legal representation, “the record fails to
establish that it is ‘more likely than not’ that he would be in danger
of future persecution as either” a relative of Sékou Touré or an
RPG member. E.R. at 5. This finding was based on the Board’s
view that (1) Fadiga was not a victim of past persecution (and so
did not receive a presumption of future persecution), and (2)
although there were State Department reports of “isolated incidents
of harassment of RPG members in 2003,” without corroboration of
the purported arrest warrant, “the record fails to demonstrate a clear
probability that [Fadiga] would be targeted for future persecution.”
Id. As to the application for withholding under the CAT, the Board
similarly found that the record was “devoid of any evidence that
[Fadiga] has ever been tortured in the past,” and that “there is also
is [sic] insufficient evidence to demonstrate a clear probability that
he would be subject to future torture in Guinea.” Id. Concluding

                                 17
that Fadiga had therefore “failed to demonstrate prima facie
eligibility” for withholding under either section 241(b)(3) of INA
or Article III of the CAT, and that he thus could not establish “that
he has been prejudiced by the actions of his former attorney,” the
BIA dismissed Fadiga’s appeal and denied his motion to reopen.
Id.

      Fadiga filed a timely petition for review in this court, and he
now challenges the final order of removal on the ground that the
BIA erroneously denied his motion to reopen as to withholding of
removal under the INA and protection under the CAT.

II. JURISDICTION AND SCOPE OF REVIEW

       The Immigration Court had jurisdiction over Fadiga’s
application for asylum, withholding of removal and protection
under the CAT pursuant to 8 C.F.R. § 1208.2(b). The BIA had
jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b)
and was authorized to consider Fadiga’s motion to reopen pursuant
to 8 C.F.R. § 1003.2(c)(4). See Korytnyuk v. Ashcroft, 396 F.3d
272, 282 (3d Cir. 2005) (motion to reopen filed during pendency
of appeal is properly heard by BIA). We have jurisdiction to
review final orders of removal under 8 U.S.C. § 1252(a)(1). See
Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005). Because
“there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft,
239 F.3d 542, 549 (3d Cir. 2001), we review only the decision of
the BIA, “absent special circumstances not present here.”16 Id. at
545.

       “[W]e review the [BIA’s] denial of a motion to reopen for
abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004). “Under the abuse of discretion standard, the Board’s
decision must be reversed if it is arbitrary, irrational, or contrary to
law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)


       16
         Where the BIA explicitly adopts “or invokes specific
aspects of the IJ’s analysis and factfinding in support of the
BIA’s conclusions,” we have authority to “review[] both
decisions.” Voci, 409 F.3d at 613; see also Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004); Abdulai, 239 F.3d at 549 n.2.

                                  18
(internal quotation marks omitted). However, we review de novo
the Board’s determination of an underlying procedural due process
claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.
2005), cert. denied, 126 S. Ct. 1362 (2006); De Leon-Reynoso v.
Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). Since claims of
ineffective assistance of counsel in immigration proceedings are
grounded in the “Fifth Amendment right to due process,” Zheng v.
Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); see infra Part III.A, we
think that such claims should be reviewed de novo.17 Finally,
questions of law, such as whether the BIA applied the correct legal
standard in considering the motion to reopen and the underlying
claim of denial of due process, are also reviewed de novo. See
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).

III. DISCUSSION

        On this petition for review, Fadiga contends that the BIA
“erroneously concluded that the Petitioner’s applications had not
been prejudiced by the ineffective assistance of his counsel.”
Petr.’s Br. 7. Fadiga argues that the alleged errors of counsel in
failing to prepare him for the hearing or to inform him of the types
of evidence that might be helpful to his application were


       17
         It does appear that in one instance this court employed
abuse-of-discretion language in reviewing a claim of ineffective
assistance of counsel. See Zheng, 422 F.3d at 108 (“[T]he BIA
seems to have been . . . within its discretion to find that no
prejudice resulted from [the] ineffective appellate assistance.”).
However, our cases both before and after Zheng have
consistently held that “we review de novo the question of
whether [a petitioner’s] procedural due process rights have been
violated.” Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006);
accord Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.
2006) (per curiam) (“We review the denial of a motion to reopen
a removal order entered in absentia for abuse of discretion, but
we review de novo the legal question whether Cabrera’s due
process rights were violated.” (citation omitted)); Alaka v. Att’y
Gen., 456 F.3d 88, 94 n.8 (3d Cir. 2006); Bonhometre, 414 F.3d
at 447; Abdulrahman v. Ashcroft, 330 F.3d 587, 595–96 (3d Cir.
2003); Chong v. INS, 264 F.3d 378, 386 (3d Cir. 2001).

                                19
“fundamental” and “deprived [him] of any real opportunity to
produce evidence to substantiate and corroborate his claims.”
Petr.’s Br. 8. With this as a predicate, Fadiga challenges the logic
and fairness of the BIA’s denial of his motion to reopen—the
denial being based on the BIA’s determinations that “‘the record
fails to demonstrate a clear probability that he would be targeted
for future persecution’” and that “‘there is also insufficient
evidence to demonstrate a clear probability that he would be
subject to future torture in Guinea.’” Petr.’s Br. 8 (quoting BIA
Dec., E.R. at 5). According to Fadiga, “this BIA language
specifically defines the prejudice that occurred. The ‘record fails
to demonstrate’ because of the failure of counsel to help his client
create a record that demonstrated anything.” Petr.’s Br. 8.

        In response, the government argues that the denial of
Fadiga’s motion to reopen was “not arbitrary or capricious and thus
not an abuse of discretion.” Respt.’s Br. 17. According to the
government, “[t]he BIA found that even assuming [competent
representation], Fadiga’s claim would have failed because he did
not prove that he would probably be persecuted or tortured . . . .
Because Fadiga did not show a reasonable probability that the
result of the proceeding would have been different if his attorney
had been effective, the BIA therefore held that Fadiga had failed to
prove that he was prejudiced by his attorney’s allegedly ineffective
assistance.” Id. The government further argues that “[i]n any
event, Fadiga’s ineffectiveness claim could not succeed because he
did not satisfy all of the requirements set forth in Matter of Lozada,
19 I. & N. Dec. 637, 639 (BIA 1988)”—an issue that appears not
to have been expressly resolved by the BIA because of the BIA’s
dispositive finding that Fadiga could not establish prejudice.
Respt.’s Br. at 19 n.10.

       In the balance of this opinion, we first lay out the framework
for evaluating an ineffective-assistance-of-counsel claim in
removal proceedings (addressing, along the way, the government’s
contention that Lozada bars Fadiga’s claim). We then undertake
to determine the proper standard for determining prejudice within




                                 20
that framework,18 concluding, in accord with the view of the
government, that our recent decision in United States v.
Charleswell, 456 F.3d 347 (3d Cir. 2006), establishes that the
proper inquiry is whether there is a “reasonable likelihood” (or,
synonymously, a “reasonable probability”) that the result would
have been different given effective assistance of counsel. In light
of this determination, we then examine the BIA’s decision in this
case and conclude that the BIA erred in requiring Fadiga to show
a “clear probability” that the result would have been different.
Finally, we find that, in the proceedings in the Immigration Court,
counsel’s representation of Fadiga was deficient; and we further
find that, had counsel rendered effective assistance, there is a
“reasonable likelihood” that Fadiga would have prevailed.

A. Ineffective assistance of counsel in removal proceedings

        A claim of ineffective assistance of counsel in removal
proceedings is cognizable under the Fifth Amendment—i.e., as a
violation of that amendment’s guarantee of due process. Zheng,
422 F.3d at 106; Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001);
see also Abdulai, 239 F.3d at 549 (“[A]liens facing removal are
entitled to due process.”); accord Hernandez v. Reno, 238 F.3d 50,
55 (1st Cir. 2001) (“[W]here counsel does appear for the [alien],
incompetence in some situations may make the proceeding
fundamentally unfair and give rise to a Fifth Amendment due
process objection.” (emphasis in original)). Where an alien claims
a denial of due process because he was “prevented from making his
case to the BIA or the IJ,” Abdulai, 239 F.3d at 549,19 he must


       18
          Neither party’s initial filings in this court expressly
addressed the standard applicable to the determination of
prejudice in this context, but we requested and heard oral
argument on the issue and subsequently received a follow-up
letter brief from the government.
       19
          Abdulai identifies three requirements of due process in
removal proceedings. “An alien: (1) is entitled to factfinding
based on a record produced before the decisionmaker and
disclosed to him or her; (2) must be allowed to make arguments
on his or her own behalf; and (3) has the right to an

                                 21
show (1) that he was “prevented from reasonably presenting his
case” and (2) that “substantial prejudice” resulted. Khan v. Att’y
Gen., 448 F.3d 226, 236 (3d Cir. 2006) (internal quotation marks
omitted).     Furthermore, in addition to these substantive
requirements for establishing a denial of due process, a due process
claim based on an allegation of ineffective assistance of counsel
must meet certain procedural requirements established by the BIA.
See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). These
so-called Lozada requirements serve as a threshold and a screening
mechanism to help the agency “assess the ‘substantial number’ of
ineffective assistance claims that it receives.” Lu, 259 F.3d at 132
(quoting Lozada, 19 I. & N. Dec. at 639).

       1. Lozada’s threshold procedural requirements

        Matter of Lozada sets forth the procedural requirements
which must be satisfied before the BIA considers a Fifth
Amendment-based claim of ineffective assistance of counsel on its
merits. 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, and if not, why not.”
Lozada, 19 I. & N. Dec. at 639. In Lu, “[w]e generally agree[d]
that the [Lozada] three-prong test is not an abuse of the Board’s
wide-ranging discretion.” 259 F.3d at 132; accord Zheng, 422 F.3d
at 106; see also Hernandez, 238 F.3d at 55 (praising Lozada as an
appropriate method of “cop[ing] with the . . . problem . . . . that
such claims are easily made and compromise finality” (citation
omitted)).




individualized determination of his or her interests.” 239 F.3d at
549 (citations and internal quotation marks omitted). It is the
second requirement which is implicated by ineffective-assistance
claims such as Fadiga’s.

                                 22
       a. Was Fadiga required to file a complaint with
disciplinary authorities?

        There is no dispute that Fadiga complied with the first two
Lozada requirements—filing an explanatory affidavit and
providing former counsel with an opportunity to respond. Nor is
it disputed that Fadiga did not file a complaint with a bar grievance
committee or other “appropriate disciplinary authorities,” Lozada,
19 I. & N. Dec. at 639, in regard to Daniel Pell’s allegedly
deficient performance. Accordingly, the government argues that
if the BIA had not denied Fadiga’s motion on the prejudice issue,
it would have had to do so “because of his failure to comply with
Lozada”—that is, because “Fadiga neither filed a disciplinary
complaint nor explained his failure to do so.” Respt.’s Br. 19 n.10.

        In its brief discussion of Lozada’s complaint requirement,
the Board’s decision and order in this case noted that “ordinarily”
and “[i]n most cases” a complaint would be required. However,
the decision and order then included “cf.” citations to page 134 of
our opinion in Lu, supra, and to the Pell affidavit. In Lu, we noted
the “dangers . . . in applying a strict, formulaic interpretation of
Lozada” and, on the page cited by the BIA, we stressed that the
filing of a complaint “is not an absolute requirement” and that “the
failure to file a complaint is not fatal if a petitioner provides a
reasonable explanation.” Lu, 259 F.3d at 133, 134 (emphasis in
original).20 In its citation to the Pell affidavit, the Board noted
Pell’s “accept[ance of] responsibility for the aforementioned
errors.” E.R. at 4.21 Although the Board then went on to deny the
motion on finding no prejudice, without explicitly ruling on the


       20
          See also Zheng 422 F.3d at 106 (“‘[O]nly in rare
circumstances have courts refused to reopen immigration
proceedings solely because a petitioner failed to file a bar
complaint.’” (quoting Lu, 259 F.3d at 133, 134 (emphasis in
original))); Ponce-Leiva v. Ashcroft, 311 F.3d 369, 374 (3d Cir.
2003); Chmakov v. Blackman, 266 F.3d 210, 213 n.3 (3d Cir.
2001).
       21
         Pell also acknowledged the ineffectiveness in the
motion to reopen filed with the IJ on May 26, 2004.

                                 23
Lozada requirements, a logical interpretation of the Board’s
citations—coming directly after its statement that the complaint
requirement “ordinarily” and “in most cases” would apply—is that
the Board found the Pell affidavit to be a “reasonable explanation,”
Lu, 259 F.3d at 134, for the failure to file a complaint.

        Whether or not the Board intended to so rule, such a ruling
would seem the proper one. In explaining that the Lozada
requirements “need not be rigidly enforced where their purpose is
fully served by other means,” 259 F.3d at 134 (internal quotation
marks omitted), Lu detailed several interests served by “the third
prong of the Lozada test, the so called ‘bar complaint’
requirement.” Id. at 132–33; see also In re Rivera-Claros, 21 I. &
N. Dec. 599, 603–605, 607 (BIA 1996) (en banc) (discussing
“multiple purposes behind . . . Lozada rule”). These interests
include providing a “means of identifying and correcting possible
misconduct” in the immigration bar, Rivera-Claros, 21 I. & N.
Dec. at 604, “deter[ing] meritless claims of ineffective assistance
of counsel [and] highlight[ing] the standards which should be
expected of attorneys who represent aliens in immigration
proceedings,” id., “increas[ing the Board’s] confidence in the
validity of the particular claim[,] . . . . reduc[ing] the likelihood that
an evidentiary hearing will be needed[,] . . . . serv[ing the Board’s]
long-term interests in policing the immigration bar[,] . . . . [a]nd . . .
protect[ing] against possible collusion between counsel and the
alien client.” Id. at 605. All of these interests—save the last—are
served without a complaint where, as here, prior counsel has fully
and openly owned up to his error and provided a detailed affidavit
attesting to the problems in the representation. As to the
“collusion” rationale, it seems unlikely that a lawyer would go so
far as to commit perjury (i.e., intentionally filing a false affidavit)
in furtherance of such collusion.

       Therefore, we find that the requirement of a complaint was
excused in this case where counsel acknowledged the
ineffectiveness and made every effort to remedy the situation.
Lozada provides no bar to Fadiga’s claim.

       2. The substantive error-and-prejudice test

       When the Lozada requirements are met or excused, the BIA

                                   24
proceeds to the merits of the underlying ineffective-assistance
claim, applying a two-part, error-and-prejudice test. See Zheng,
422 F.3d at 107; cf. Strickland v. Washington, 466 U.S. 668 (1984)
(establishing error-and-prejudice test applicable to Sixth
Amendment claims of ineffective assistance of counsel in criminal
cases). In evaluating the presentation of an alien’s case under this
test, the questions addressed are (1) whether “competent counsel
would have acted otherwise,” Iavorski v. INS, 232 F.3d 124, 129
(2d Cir. 2000) (internal quotation marks omitted), and, if yes, (2)
whether the alien “was prejudiced by counsel’s poor performance,”
Zheng, 422 F.3d at 107.22 This familiar test, well developed in our
Sixth Amendment jurisprudence, serves as a useful surrogate for
the due process inquiry, as it measures substantially the same
elements required to establish a denial of due process (i.e., whether
the alien was prevented from “reasonably presenting his case,”
resulting in “substantial prejudice,” see supra Part III.A (quoting
Khan, 448 F.3d at 236)).23


       22
            Accord Maravilla Maravilla v. Ashcroft, 381 F.3d 855,
858 (9th Cir. 2004) (per curiam) (aliens must show (1) that
“‘counsel [did not] perform with sufficient competence’” and (2)
“that they were prejudiced by their counsel’s performance”
(quoting Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004)));
cf. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (stating
Strickland error-and-prejudice test in context of Sixth
Amendment right to counsel in criminal cases) (“[A] defendant
must show both that: (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms; and (2) the defendant suffered prejudice as a
result . . . .” (internal quotations omitted)).
       23
         As a matter of formal constitutional doctrine, the Sixth
Amendment right to (effective) counsel does not apply in a civil
context such as immigration proceedings. Nevertheless, “we
cannot treat immigration proceedings like everyday civil
proceedings, despite their formally civil character,” because
“unlike in everyday civil proceedings, ‘the liberty of an
individual is at stake’ in deportation proceedings.” Ponce-Leiva
v. Ashcroft, 331 F.3d 369, 380–81 (3d Cir. 2003) (Rendell, J.,
dissenting) (quoting Bridges v. Wixon, 326 U.S. 135, 154

                                 25
       a. The prejudice standard

       Our cases have not heretofore had occasion to put into sharp
focus the proper formulation of the standard by which prejudice is
to be measured in considering a Fifth Amendment claim of
ineffective assistance of counsel in removal proceedings. Those
cases that have touched on the question have described the standard
in a variety of ways. E.g., Ponce-Leiva v. Ashcroft, 311 F.3d 369,
377 (3d Cir. 2003) (asking whether petitioner “was prevented from
reasonably presenting his case”); Zheng, 422 F.3d at 107 n.6
(finding no prejudice because “Zheng ha[d] given us no reason to
believe” that, if counsel had acted competently, the Board “might
have reversed the IJ’s . . . decision”).24

       The government, in a supplementary letter brief, contends
that useful guidance is provided by Charleswell, supra, a recent
case dealing with analogous legal issues in the context of a criminal
prosecution for illegal reentry into the United States. In



(1945)).
       24
          In the Sixth Amendment context, where we have had
more opportunities to apply the prejudice standard, we have
generally followed the Strickland formulation requiring that
“[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” Strickland, 466 U.S. at
694, and defining a “reasonable probability” as “a probability
sufficient to undermine confidence in the outcome,” id. See
Fischetti v. Johnson, 384 F.3d 140, 155 (3d Cir. 2004); Sistrunk,
96 F.3d at 670. However, we have also phrased the standard as a
requirement that the defendant “must show . . . a reasonable
likelihood that he would not have been convicted.” Thomas v.
Varner, 428 F.3d 491, 502 (3d Cir. 2005), cert. denied, 127 S.
Ct. 928 (2007); see also Jermyn v. Horn, 266 F.3d 257, 311 (3d
Cir. 2001) (“[Defendant must show a] reasonable likelihood that
the totality of the available mitigating evidence . . . might have
led to a different result.”); cf. Strickland, 466 U.S. at 696 (noting
that defendant must “show[] that the decision reached would
reasonably likely have been different absent the errors”).

                                 26
Charleswell, a defendant subject to prosecution for illegal reentry
sought to mount a collateral challenge to the underlying order of
removal based on a denial of due process in the deportation
proceedings. See 456 F.3d at 349. One requirement to succeed on
such a challenge is a showing that the underlying deportation
proceeding was “‘fundamentally unfair.’” Id. at 351 (quoting
United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004)). A
showing of fundamental unfairness in the context faced by the
Charleswell court required “both that some fundamental error
occurred and that as a result of that fundamental error [the alien]
suffered prejudice.” Id. at 358. Noting that “our Court ha[d] never
spoken directly to the issue of prejudice” in that context, the
Charleswell court adopted the position of “the majority of courts
that ha[d] addressed” the issue and held that a showing of
“prejudice requires a reasonable likelihood that the result would
have been different if the error in the deportation proceeding had
not occurred.” Id. at 361–362.

       In so ruling, the Charleswell court observed that “this
standard appears to be analogous to the standard required . . . to
prove an ineffective assistance of counsel claim.” Id. at 361.
Indeed, in the case cited by Charleswell for this
proposition—United States v. Copeland, 376 F.3d 61 (2d Cir.
2004)—the Second Circuit expressly adopted the Strickland Sixth
Amendment standard governing prejudice from alleged ineffective
assistance of counsel in criminal proceedings as the standard to be
applied, under the Fifth Amendment, to determine prejudice from
an alleged denial of due process in removal proceedings.
Copeland, 376 F.3d at 73 (“[T]he appropriate test for prejudice is
the one used to decide ineffective assistance of counsel claims,
namely, prejudice is shown where ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” (quoting Strickland, 466
U.S. at 694)).25


       25
         Like Charleswell, Copeland concerned a collateral
challenge to an underlying order of removal, based on an
asserted denial of due process in the underlying deportation
proceedings. The error alleged in the underlying proceedings in
Copeland was the IJ’s failure to inform the alien of his right to

                                27
       We agree with the government that the Charleswell
“reasonable likelihood” standard—or its equivalent, the
“reasonable probability” standard26—is also appropriate to the
prejudice inquiry in the context of an alleged denial of due process
in removal proceedings due to ineffective assistance of counsel.
Charleswell and Copeland applied the “reasonable likelihood”
standard to determine prejudice from denials of due process in
removal proceedings, in instances where the alleged defect was not
ineffective assistance of counsel, in part because the alleged defect
in the proceedings was “analogous to” ineffective assistance of
counsel. We therefore view it as entirely appropriate to apply the
“reasonable likelihood” standard in the “close-fitting,” Copeland,
376 F.3d at 73, circumstance where the alleged defect in the
removal proceedings is ineffective assistance of counsel. Further,



apply for discretionary relief from removal. See Copeland, 376
F.3d at 70. In adopting the Strickland standard as the proper one
for determining prejudice from such an error, the Copeland court
explained that:

       Th[e] analogy [between the Copeland facts and a
       case involving alleged ineffective assistance of
       counsel] is close-fitting because the denial of an
       opportunity to apply for [discretionary] relief will
       generally be the result either of a lawyer having
       caused an eligible alien to fail to apply, or of an IJ,
       owing special duties to a pro se alien, having failed
       to give notice of such an opportunity. In the latter
       case, therefore, prejudice is shown where there is a
       reasonable probability that, but for the IJ’s
       unprofessional errors, the alien would have been
       granted [discretionary] relief.

Copeland, 376 F.3d at 73 (citations omitted).
       26
         See supra note 24 (“reasonable likelihood” and
“reasonable probability” used as equivalent terms in Sixth
Amendment ineffective-assistance-of-counsel case law);
compare also Strickland, 466 U.S. at 694 (“reasonable
probability”), with id. at 696 (“reasonably likely”).

                                 28
the standard is a familiar one and properly 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. For these reasons, we find that an alien claiming ineffective
assistance of counsel in removal proceedings must, in addition to
showing that his lawyer committed unprofessional errors, show that
there was a “reasonable likelihood that the result would have been
different if the error[s] . . . had not occurred.” Charleswell, 456
F.3d at 362.

B. The BIA’s analysis

       The BIA’s two-paragraph treatment of Fadiga’s
ineffective-assistance claim as to withholding of removal under the
INA and protection under the CAT reads as follows:

              We now turn to the [Fadiga’s] remaining
       applications for relief. With regard to his application
       for withholding of removal under section 241(b)(3)
       of the Act, we find that even if this Board were to
       assume the truth of [Fadiga’s] claim, the record fails
       to establish that it is “more likely than not” that he
       would be in danger of future persecution as either a
       member of Sekou Toure’s family or as a member of
       the RPG party. [Fadiga] is not a victim of past
       persecution; therefore, he does not qualify for a
       presumption of future persecution. Furthermore,
       although the Department of State verified isolated
       incidents of harassment of RPG members in 2003;
       inasmuch as [Fadiga] has failed to provide any
       additional evidence corroborating the validity of the
       arrest warrant he previously submitted, we find that
       the record fails to demonstrate a clear probability
       that he would be targeted for future persecution.
       Likewise, following consideration of the evidence
       submitted in support of [Fadiga’s] motion, as well as
       the evidence of record, we find that [he] has failed to
       demonstrate his eligibility for relief under the
       [CAT]. We find that not only is the record is [sic]

                                 29
       devoid of any evidence that [Fadiga] has ever been
       tortured in the past, but there is also is [sic]
       insufficient evidence to demonstrate a clear
       probability that he would be subject to future torture
       in Guinea.

              Accordingly, [Fadiga] has failed to
       demonstrate prima facie eligibility for either
       withholding of removal under [the INA] or
       protection pursuant to the [CAT]; and as a result, we
       do not find that [Fadiga] has demonstrated that he
       has been prejudiced by the actions of his former
       attorney.

E.R. at 5 (citations and footnote omitted).

       Although the Board stated that it was applying a “prima
facie eligibility” standard, the Board’s analysis reveals that the
Board, in fact, held Fadiga to a higher standard—requiring him to
demonstrate eligibility for relief under the ultimate standards
applicable to claims for withholding of removal and protection
under the CAT, i.e., the “more likely than not” or “clear
probability” standards.27 This was error, because those standards
are more demanding than the showing properly required to
demonstrate prima facie eligibility for relief.

       In Sevoian, we explained that “the prima facie case standard
for a motion to reopen . . . requires the applicant to produce
objective evidence showing a ‘reasonable likelihood’ that he can


       27
          See, e.g., Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d
Cir. 2007) (withholding of removal under INA requires showing
of “clear probability of persecution” in the proposed country of
removal); id. at 658 (protection under the CAT requires showing
that alien is “‘more likely than not’ to be tortured with the
consent or acquiescence of the . . . government” in the proposed
country of removal). In this context, the “clear probability” and
“more likely than not” standards are equivalent, and both
standards are equivalent to a “preponderance of the evidence.”
INS v. Stevic, 467 U.S. 407, 424 & n.19 (1984).

                                30
establish that he [merits relief under the applicable standard].” 290
F.3d at 175; see also Guo, 386 F.3d at 563. And in Guo, we
emphasized that “a ‘reasonable likelihood’ means merely showing
a realistic chance that the petitioner can at a later time establish that
asylum should be granted.” Guo, 386 F.3d at 564. Because the
Board had required Guo to “establish” (i.e., by a preponderance of
the evidence) eligibility for relief, we found that it had erred by
applying an “excessively rigorous standard.” Guo, 386 F.3d at
564.28

       Likewise, in ruling on the motion to reopen in Fadiga’s case,
the BIA applied an “excessively rigorous standard” to the inquiry
whether Fadiga had established the prejudice component of his
underlying claim of ineffective assistance of counsel. As
established in our discussion supra, the proper standard was
whether there was a “reasonable likelihood” that the outcome of
Fadiga’s hearing in the Immigration Court would have been
different absent the errors allegedly made by his counsel.

       While a “reasonable likelihood” of a different outcome


       28
            We said:

       The Board, . . . in its denial of Guo’s motion . . .,
       stated that she must proceed to end-game and
       “establish that there is a pattern or practice [of
       enforcing the family planning policy against
       Chinese nationals with foreign-born children] in
       her homeland” (emphasis added). In this context,
       “establish” means the evidence for asylum
       outweighs the evidence against. A “reasonable
       likelihood” means merely showing a realistic
       chance that the petitioner can at a later time
       establish that asylum should be granted. The
       distinction may at first appear to be subtle shading,
       but without it “prima facie” (meaning at first sight)
       would lack meaning.

Guo, 386 F.3d at 563–64 (bracketed and parenthetical material
in original).

                                   31
requires more than a showing of “a plausible ground for relief from
deportation,” Charleswell, 456 F.3d at 361 (internal quotation
marks omitted), it does not require that a different outcome was
more likely than not. The latter point has been made clear in the
Sixth Amendment context by repeated pronouncements of the
Supreme Court and this Circuit. See, e.g., Nix v. Whiteside, 475
U.S. 157, 175 (1986) (“[A] defendant need not establish that the
attorney’s deficient performance more likely than not altered the
outcome in order to establish prejudice under Strickland.”). Most
recently, in Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005), cert.
denied, 127 S. Ct. 928 (2007), we explained that

       [t]he prejudice component requires [the defendant]
       to show “that there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of
       the proceeding would have been different.”
       Strickland, 466 U.S. at 694. He “need not show that
       counsel’s deficient performance ‘more likely than
       not altered the outcome in the case’—rather, he must
       show only ‘a probability sufficient to undermine
       confidence in the outcome.’” Jacobs [v. Horn, 395
       F.3d 92, 105 (3d Cir. 2005)] (citing Strickland, 466
       U.S. at 693–94). “This standard is not a stringent
       one.” Id. (internal quotations omitted).

428 F.3d at 502 (parallel citations omitted).29

      Notably, the Ninth Circuit has had occasion to address a
BIA error very similar to the Board’s error in the case at bar. In


       29
          In Obleshchenko v. Ashcroft, the Eighth Circuit applied
this Sixth Amendment standard of proof to a claim of
“ineffective assistance of counsel at deportation or exclusion
proceedings.” 392 F.3d 970, 972 (8th Cir. 2004) (holding that
the required prejudice inquiry “ask[s] whether there is a
reasonable probability that the IJ would have altered his
judgment had the [alien] been represented by . . . competent
counsel,” “where ‘reasonable probability’ means ‘a probability
sufficient to undermine confidence in the outcome’” (quoting
Strickland, 466 U.S. at 694)).

                                32
Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004), the
BIA denied a motion to reopen an order directing the removal of a
Mexican married couple. Id. at 857. The motion to reopen
challenged the removal order on ineffective-assistance grounds. Id.
As the Ninth Circuit explained, the BIA “conclud[ed] that
petitioners failed to show that their case outcome ‘would have been
different but for the alleged ineffectiveness’ of counsel.” Id. at 857
(quoting BIA opinion). Finding that it was error for “the BIA [to]
directly adjudge[] the question of whether petitioners would win or
lose their claim,” the Ninth Circuit granted the petition for review
and remanded for “the BIA to consider whether competent counsel
would have acted otherwise, and, if so, to consider under the
correct standard whether petitioners were thereby prejudiced.” Id.
at 859.

        Because, in the case at bar, the BIA applied too rigorous a
standard in denying Fadiga’s motion to reopen—requiring Fadiga
to establish not a “reasonable likelihood” but a “clear probability”
of gaining the relief sought (or that he “more likely than not”
would prevail)—this court could, following the practice of the
Maravilla Maravilla court, remand this case to the BIA to afford
that tribunal an opportunity to determine whether Pell’s
representation of Fadiga was deficient and, if so, whether the
deficient representation undercut Fadiga’s opportunity to present
his claims in the Immigration Court.30

      In the present circumstances, however, we think that it
would be an act of supererogation for this court to ask the BIA to
determine whether Pell’s representation fell below minimal


       30
          Fadiga contends that the BIA has already addressed the
first question—whether Pell’s representation of Fadiga was
deficient—and has “accepted that ineffective assistance
occurred.” Petr.’s Br. 7. We read the BIA’s opinion differently.
We think the BIA merely assumed arguendo that Pell’s
representation of Fadiga was deficient, focusing instead on what
the BIA then found to be an absence of prejudice. See E.R. at 4
(“[E]ven if the performance of [Fadiga’s] prior counsel had been
deficient, [Fadiga’s] motion must . . . be denied because he has
failed to establish [prejudice].”).

                                 33
professional standards, thereby prejudicing Fadiga. The full record
of that representation is before us, and we are competent to assess
what transpired.

C. Application of the error-and-prejudice test to Fadiga’s
claim of ineffective assistance

        The Pell affidavit submitted to the BIA—corroborating and
expanding on Pell’s oral proffer to the IJ—makes it plain that the
faulty I-589 was prepared by a law student, was not reviewed by
Pell, and was not discussed with Fadiga by Pell in advance of the
hearing before the IJ. “Further, [Pell] did not advise Mr. Fadiga to
produce witnesses or declarations regarding his familial ties to
former President . . . Sekou Toure, his membership in the
R.P.G., . . . the treatment of R.P.G. members by the government,
or . . . treatment of [Touré’s] family members . . . by the
government.” E.R. at 41 (Pell. Aff.) ¶ 13. Moreover—Pell advised
the BIA in his affidavit—Pell was “quite certain . . . that Mr.
Fadiga could and would have produced witnesses or affidavits or
declarations to prove” Fadiga’s relationship to Sekou Touré,
Fadiga’s membership in the RPG, and the targeting of both Touré
family members and RPG “members and/or officials” by the
incumbent Guinean government. Id. ¶ 15.

       These attestations, which are uncontroverted in the record,
make clear that Pell’s performance “fell below an objective
standard of ‘reasonableness under prevailing professional norms.’”
Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (quoting
Strickland, 466 U.S. at 668). It does not require Pell’s coda—“I
deeply regret and sincerely apologize for the problems that I have
caused this Court, the government attorneys, and Mr. Fadiga, in not
having been more thorough in presenting his case from an
evidentiary standpoint. I know better.” E.R. at 42 (Pell Aff.)
¶ 16—to establish that Pell’s failures severely compromised
Fadiga’s capacity to present his claims cogently in the Immigration
Court.31


       31
         Little wonder that, merely on the basis of what Fadiga
and Pell told the IJ at the hearing (i.e., before Pell’s proffer at the
hearing took formal shape as the Pell affidavit submitted to the

                                  34
        Was Fadiga prejudiced by Pell’s deficient representation?
In our view, the record establishes that Fadiga was
prejudiced—i.e., that there would have been a “reasonable
likelihood” of Fadiga achieving a favorable outcome at the May 7,
2004 hearing had Pell performed effectively. The IJ’s decision was
based in large part on doubts about the credibility of Fadiga’s
testimony—doubts that were predicated on evidentiary
inconsistencies which would have been avoided by competent
counsel. See supra Parts I.B.2–4, I.C.1. In addition, the IJ
discounted the probative value of Fadiga’s other, documentary
evidence in part because it was “not supported by detailed
affidavits or testimonial corroboration,” E.R. at 34, and it is clear
from the record that at least some such corroboration would have
been available given competent advice and preparation by counsel.
Thus, counsel’s errors contributed directly to the evidentiary
defects that led the IJ to deny relief. Cf. Strickland, 466 U.S. at
695 (“[A] court hearing an ineffectiveness claim must consider the
totality of the evidence before the [fact-finder]. Some of the
factual findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in different
ways.”).

        We are also mindful of the ambivalence in the IJ’s opinion,
see, e.g., supra note 14 and accompanying text. The IJ stated that
“[t]his is not an easy case for the Court to decide because of the
preparation issues raised by [Fadiga],” E.R. at 28—concerns to
which the IJ adverted more than once. E.g., E.R. at 34, 36, 37. Cf.
Strickland, supra at 696 (“[A] conclusion only weakly supported
by the record is more likely to have been affected by errors than
one with overwhelming record support.”).

       In sum, we find that there is at least a “reasonable


BIA), the IJ noted that “[a] reviewer of this record[,] if an appeal
is taken, will . . . have to determine whether or not the evidence
presented in these proceedings, given [Fadiga’s] testimony and
the representations of counsel, resulted in a fundamentally fair
hearing.” E.R. at 37. (The IJ went on to state that “[a]s of today,
the Court does not find that the fundamental[] fairness
prescription has been abrogated.” Id.)

                                 35
likelihood” that, absent the avoidable evidentiary inconsistencies,
and with the addition of witnesses who could have corroborated
Fadiga’s testimony and his documentary evidence, the IJ would
have granted Fadiga withholding from removal under the INA,
protection under the CAT, or both. Because the record, viewed in
light of the correct legal standard for determining prejudice, thus
establishes that Fadiga was denied due process, the Board abused
its discretion by denying the motion to reopen. Finally, in
consideration of the already protracted history of the case, we
pretermit further review by the BIA of Fadiga’s motion to reopen.
It is clear that the IJ must be directed to reexamine Fadiga’s claims.
“While we cannot yet say that [Fadiga] is entitled to [relief], we are
persuaded that [he] at least deserves a hearing.” Guo, 386 F.3d at
564.

IV. CONCLUSION

       For the reasons stated, the petition for review is granted, the
October 6, 2005 decision and order of the Board of Immigration
Appeals is vacated, and the case is remanded to the Board of
Immigration Appeals with directions to remand to the Immigration
Court for reopening of petitioner Soriba Fadiga’s case.




                                 36
