2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-22-2011

Gezim Doda v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1433

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1433

_____________

GEZIM DODA

a/k/a GJOKE SHQUTAJ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA 1:A074-955-543)

Immigration Judge: Honorable Annie Garcy

_______________

Submitted Under Third Circuit LAR 34.1(a)

November 9, 2011

Before: SCIRICA, SMITH and JORDAN, Circuit Judges.

(Filed: November 22, 2011)

_______________

OPINION OF THE COURT

_______________
2

JORDAN, Circuit Judge.

Gjoke Shqutaj1petitions for review of the November 22, 2010 order of the Board 

of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. 

For the reasons that follow, we will deny the petition.

I. Background

Shqutaj is a native and citizen of Albania. On June 6, 1996, he attempted to enter 

the United States through Newark, New Jersey with an illegally obtained passport. As a 

result, he was charged with inadmissibility under 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I) for entering the United States with an invalid visa or entry

document, and 8 U.S.C. § 1182(a)(6)(C)(i) for presenting a fraudulent passport. Despite 

those charges, Shqutaj was paroled into the United States so that he could apply for 

asylum. 

In October 1996, Shqutaj filed his application for asylum. In it, he claimed that 

his father had been “arrested, convicted and sentenced to 15 years in jail because he 

assisted people who had escaped from Albania and protested against the communist 

government in Albania.” (A.R. at 515.) In addition, Shqutaj claimed that he feared 

persecution by the communist regime, if he were returned to Albania. Finally, he alleged 

that he also feared he would be persecuted by the Socialist Party of Albania because he 

had been a member of Albania’s rival Democratic Party. 

 

1

“Gezim Doda” is the name appearing first on the caption in this case, but 

petitioner’s application for asylum and withholding of removal, and his brief on appeal,

bear the name “Gjoke Shqutaj”. Therefore, in this Opinion, we refer to him as “Shqutaj.”
3

On June 25, 1997, an Immigration Judge (“IJ”) denied Shqutaj’s application for 

asylum and ordered his removal. Shqutaj appealed that decision to the BIA, and on 

March 6, 2002, the BIA affirmed the decision and order. 

On November 2, 2010, Shqutaj filed an untimely motion to reopen his removal 

proceedings. He argued, that the BIA should consider his untimely motion because, as a 

Catholic, he was in danger due to growing animosity between “Muslims, Catholics, and 

Orthodox religions” in Albania. (J.A. at 16.) He also argued that the tardiness of his 

motion should be excused due to the ineffective assistance rendered by his counsel. 

Finally, Shqutaj asserted that he feared persecution because he was the target of a 

revenge-killing resulting from a “blood feud” between his father-in-law’s family and a 

neighbor. 

The BIA decided that Shqutaj’s motion to reopen was untimely because he failed 

to file it within the 90-day filing period prescribed by the Immigration and Nationality 

Act, 8 U.S.C. § 1229a(c)(7)(C)(i). The BIA also determined that none of the exceptions 

to the 90-day filing requirement applied to Shqutaj’s motion. First, it noted that although 

the religious climate in Albania changed for Catholics since 1997, the religious climate 

“did not change in ... a way that would support [Shqutaj’s] claim for ... asylum, 

withholding of removal, or protection under the Convention Against Torture,” because a

2007 U.S. Department of State Report (the “2007 Report”) demonstrated that Roman 

Catholics in Albania “enjoyed a greater degree of official recognition ... and social status 

than some other religious groups.” (J.A. at 4) (internal quotation marks omitted). 

Second, the BIA rejected Shqutaj’s ineffective assistance of counsel claim because it 
4

found that he could not prove that he suffered prejudice as a result of his attorney’s 

allegedly deficient performance. 

Turning to Shqutaj’s claim of persecution as a result of a blood feud, the BIA 

rejected it, saying the “evidence indicate[d] that the [Albanian] government investigates 

and punishes blood feuds and their related crimes and that many blood feud actions have 

been criminalized by the Albanian Government.” (Id. at 4.) The BIA also found that 

blood feuds are “essentially personal disputes that are criminal in nature” and that 

Shqutaj had failed to present evidence that “the Albanian government is unable or 

unwilling to protect its populace from such threats.” (Id. at 5.) 

Shqutaj timely petitioned for review of the BIA’s decision. 

II. Discussion2

The parties do not dispute that Shqutaj’s motion to reopen is untimely.3 

Therefore, unless Shqutaj can demonstrate that a change in country conditions justifies 

reopening his removal proceedings, or that we should toll the filing deadline due to 

 

2

The BIA had jurisdiction under 8 C.F.R. § 1003.2. We have jurisdiction 

pursuant to 8 U.S.C. § 1252. 

In immigration cases, we review the denial of a motion to reopen for abuse of 

discretion, regardless of the underlying basis for the alien’s request for relief. INS v. 

Doherty, 502 U.S. 314, 323-24 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d 

Cir. 2003). We give the BIA’s decision broad deference and generally do not disturb it 

unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 

251 (3d Cir. 2006) (citation and quotation marks omitted).

3 An alien may file a motion to reopen “within 90 days of the date of entry of a 

final administrative order of removal.” See 8 U.S.C. § 1229a(c)(7)(C)(i).
5

ineffective assistance of counsel, we must conclude that the BIA correctly denied 

Shqutaj’s motion as untimely.4

A. Changed Country Conditions

The 90-day time limit for filing a motion to reopen does not apply if the motion 

relates to an application for asylum based on “changed country conditions arising in the 

country of nationality or the country to which removal has been ordered, if such evidence 

is material and was not available and would not have been discovered or presented at the 

previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The 

alien bears the burden of proving eligibility for the requested relief. 8 C.F.R. 

§ 1003.2(c)(1).

The only evidence Shqutaj offered in support of his claim of changed country 

conditions is his unsupported assertion that “[s]ince 2006, there have been escalating 

tensions between Muslims, Catholics and Orthodox religions,” (J.A. at 16), and that 

Catholics “are considered ... a different people [in Albania] ... and ... are discriminated 

[against] in every public and government place,” (id. at 36). However, the evidence of 

record belies Shqutaj’s assertion that conditions in Albania deteriorated for Catholics 

between 1996 (the date of his original application for asylum and withholding of 

removal) and 2007. In fact, the only evidence in the record that describes the religious 

 

4 We have recognized the following exceptions to the 90-day filing requirement: 

(1) motions to reopen for the purpose of applying “for asylum or withholding of 

deportation based on changed country conditions,” 8 C.F.R. § 1003.2(c)(3)(ii); (2) 

equitable tolling due to ineffective assistance of counsel, Mahmood v. Gonzales, 427 F.3d 

248, 251-52 (3d Cir. 2005); and (3) requests for the BIA to open removal proceedings 

sua sponte, 8 C.F.R. § 1003.2(a). Shqutaj invokes only the first two of those three 

exceptions.
6

conditions in Albania, the 2007 Report, supports the government’s assertion that 

conditions improved for Catholics in Albania during that time. In particular, the 2007 

Report states that “[t]he [Albanian] constitution and law provide for freedom of religion 

and the government generally respect[s] this right.” (Id. at 65.) The 2007 Report further 

states that “[t]he predominant religious communities, Sunni Muslim, Bektashi Muslim, 

Orthodox, and Roman Catholic, enjoy[] a greater degree of official recognition (for 

example, national holidays) and social status than some other religious groups.”5 (Id. at 

65.) Because that evidence demonstrates that Catholics enjoyed a greater degree of 

freedom and respect between 1996 and 2007, we agree with the BIA’s conclusion that the 

religious climate for Catholics in Albania “did not change in such a way that would 

support the applicant’s claim for asylum, withholding of removal, and protection under 

the Convention Against Torture based solely on [Shqutaj’s] asserted fear.” (Id. at 12.) 

Therefore, Shqutaj failed to satisfy his burden of demonstrating a material change in 

country conditions.

B. Ineffective Assistance of Counsel

An ineffective assistance of counsel claim can serve as a basis for equitably tolling 

the filing deadline for a motion to reopen a removal proceeding. Mahmood, 427 F.3d at

251-52 (internal citations and quotation marks omitted). In order to succeed on an 

ineffective assistance of counsel claim, however, a petitioner must first satisfy the 

 

5 Although the 2007 Report does not describe religious conditions in Albania 

between 2007 and 2010 (the year Shqutaj filed the motion to reopen), Shqutaj put forth 

no other evidence supporting his assertion that religious conditions deteriorated for 

Catholics during that period. 
7

procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

6

 

If the petitioner satisfies the Lozada requirements,7the petitioner must demonstrate that,

“as a result of counsel’s actions ... the proceeding was so fundamentally unfair that the 

alien was prevented from reasonably presenting his case.” Borges v. Gonzales, 402 F.3d 

398, 408 (3d Cir. 2005) (internal citations and internal quotation marks omitted). In other 

words, we must ask “(1) whether competent counsel would have acted otherwise, and, if 

yes, (2) whether the alien was prejudiced by counsel’s poor performance.” Fadiga, 488 

F.3d at 157 (citations and internal quotation marks omitted).

 

6

In Matter of Lozada, the BIA established the procedural requirements for filing a 

motion to reopen removal proceedings based on a claim of ineffective assistance of 

counsel. 19 I. & N. Dec. at 639. However, in Matter of Compean (“Compean I”), the 

Attorney General overruled Lozada, and introduced a new substantive and procedural 

framework for examining ineffective-assistance of counsel claims in immigration 

proceedings. Matter of Compean, 24 I. & N. Dec. 710 (A.G. Jan. 7, 2009). Thereafter, 

the Attorney General vacated “[Compean I] in its entirety,” and instructed “the [BIA] and 

Immigration Judges [to] apply the pre-Compean standards to all pending and future 

motions to reopen based upon ineffective assistance of counsel, regardless of when such 

motions were filed.” Matter of Compean (“Compean II”), 25 I. & N. Dec. 1, 3 (A.G. 

June 3, 2009). Therefore, the procedural requirements in Lozada govern Shqutaj’s 

petition.

7

Those requirements include: 

(1) support[ing] the claim with an affidavit attesting to the 

relevant facts; (2) inform[ing] former counsel of the 

allegations and provid[ing] counsel with the opportunity to 

respond (this response should be submitted with the alien’s 

pleading asserting ineffective assistance); and (3) stat[ing] 

whether a complaint has been filed with appropriate 

disciplinary authorities regarding [the allegedly deficient] 

representation, and if not, why not. 

Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks omitted) 

(citing Matter of Lozada, 19 I. & N. Dec. at 639). 
8

Here, even assuming arguendo that Shqutaj can satisfy the Lozada procedural 

requirements, his ineffective-assistance claim fails because he cannot demonstrate that he 

suffered prejudice as a result of his attorney’s performance. It is undisputed that the BIA 

ordered Shqutaj’s removal on March 6, 2002. However, for reasons unknown, Shqutaj

did not retain counsel until 2003 – more than nine months after the statutory filing period 

had lapsed. (See J.A. at 33 (“I had hired Sokol Braho in New York to file a Motion to 

Reopen in 2003 after all efforts to resolve the blood feud had failed.”).) Because 

Shqutaj’s motion to reopen was already untimely when he retained counsel, he cannot 

argue that he was prejudiced by his attorney’s failure to file the motion in a timely 

manner. Accordingly, we agree with the BIA’s conclusion that Shqutaj failed to 

demonstrate “the required prejudice stemming from his former attorney’s alleged 

behavior.”8 (Id. at 13.)

III. Conclusion

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

 

8

Even assuming arguendo that Shqutaj’s motion to reopen was timely, the BIA 

did not err in denying Shqutaj’s motion to reopen because Shqutaj failed to demonstrate 

that he is eligible for asylum. In his application for asylum, Shqutaj states that he fears 

persecution as a result of a dispute between the Daci and Tinaj families. However, 

because retaliation in response to a personal dispute does not constitute persecution on 

the basis of a protected ground, and the dispute between the Daci and Tinaj families is a 

personal dispute, Shqutaj’s alleged fear of persecution does not support his application 

for asylum. See Amanfi v. Aschroft, 328 F.3d 719, 727 (3d Cir. 2003) (noting that 

“retaliation in response to a personal dispute” is not “a ground for asylum [or] 

withholding of removal”).