2007 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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*

 Honorable Louis H. Pollak, District Judge for the United

States District Court of the Eastern District of Pennsylvania,

sitting by designation. 

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)

______
2

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
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

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.
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

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
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

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
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

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
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

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
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

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
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

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
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

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

Pell11

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
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

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
14 The tenor of the IJ’s discussion and reasoning is

reflected in a longer excerpt from the oral decision:

12

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
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

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
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

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

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.”
16

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
17

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
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

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)
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

(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
20

“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
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

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
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

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)). 
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

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
24

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
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

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
(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

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
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

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
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

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,
29

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]
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

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
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

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
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

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
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

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
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

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
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

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
36

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.