2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-22-2008

Rranci v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-3327

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http://digitalcommons.law.villanova.edu/thirdcircuit_2008/574
 Honorable Jane A. Restani, Chief Judge, United States *

Court of International Trade, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-3327

 

NAZMI RRANCI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

 

On Petition for Review of an Order of

The Board of Immigration Appeals

Immigration Judge: Honorable Henry S. Dogin

(No. A96-077-564)

 

Argued December 11, 2007

Before: SLOVITER and AMBRO, Circuit Judges

RESTANI, Chief Judge *
2

(Opinion filed August 22, 2008)

Rex Chen, Esquire (Argued)

Catholic Charities of the Archdiocese of Newark

976 Broad Street

Newark, NJ 07102

Counsel for Petitioner

Gregory G. Katsas

 Acting Assistant Attorney General, Civil Division

David V. Bernal

 Assistant Director, Office of Immigration Litigation

Richard M. Evans, Esquire

Andrew C. MacLachlan, Esquire (Argued)

Susan K. Houser, Esquire

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044-0000

Counsel for Respondent

Baher A. Azmy, Esquire (Argued)

Lori Nessel, Esquire

Meetali Jain, Esquire

Maura Caroselli, Esquire
3

Seton Hall Law School

Center for Social Justice

International Human Rights/Rule of Law Project

833 McCarter Highway

Newark, NJ 07102

Counsel for Amicus-Appellants

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Nazmi Rranci, a native of Albania, seeks relief from an

Immigration Judge’s order that he be removed from the United

States. He petitions our Court for review of a decision by the

Board of Immigration Appeals dismissing his appeal and

declining to reopen his case. We decide whether the BIA erred

in holding that his case cannot be reopened on the ground of

ineffective assistance of counsel. A sub-issue is whether an

alien who serves as a Government witness in the United States

can be removed to his home country if the person he made a

statement or testified against has threatened his life. This raises

an issue not addressed before by us — the extent a United

Nations Convention recently ratified by Congress affects

removal in this case. We grant the petition and remand to the
 Muho was a significant enough smuggler to merit a DOJ 1

press release on the event of his guilty plea. See Press Release,

DOJ, Albanian Man Pleads Guilty in Alien Smuggling

C o n s p i r a c y ( M a y 1 4 , 2 0 0 3 ), a t

4

BIA for further proceedings.

I. Facts and Procedural History

Rranci paid a smuggling operation to bring him from

Albania into the United States. He arrived in Texas in January

2003 after the smugglers had taken him through Italy,

Venezuela, Colombia, Ecuador, El Salvador, Guatemala, and

Mexico. Shortly after he crossed the border to the United States,

the former Immigration and Naturalization Service (now

Immigration and Customs Enforcement) detained him. The INS

initially served him with a notice to appear in June 2003, after

he had begun living and working in New Jersey.

After receiving the notice, Rranci became a material

witness in a criminal case against Rustem Muho, a smuggler of

illegal immigrants and an alleged chieftain in Albanian

organized crime. Rranci had hired Muho to smuggle him into

the United States. The U.S. Department of Justice (DOJ)

confirmed in writing that Rranci “cooperated with the

Government in that he gave a statement regarding the smuggling

activities” of Muho and made himself available to testify. Muho

eventually pled guilty. The DOJ stated that “Mr. Rranci and 1
http://www.usdoj.gov/opa/pr/2003/May/03_crm_293.htm (last

visited July 28, 2008). 

5

other material witnesses’ cooperation was an important factor in

convincing [Muho] to plead guilty.” Letter from Anne Marie

Farrar, Trial Attorney, Domestic Security Section, U.S. Dep’t of

Justice, to Natale F. Carabello, Jr., Esq. (April 4, 2005) (App. at

44) (hereinafter “Farrar Letter”). In order that Rranci could

remain in the United States legally while he cooperated with the

DOJ, he was paroled through April 2004. In June 2004,

however, once Muho’s case was no longer pending and Rranci’s

parole had expired, the INS served Rranci with a second notice

to appear. It stated that he was subject to removal under

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United

States without having been admitted or paroled.

In March 2005, Rranci applied for asylum, withholding

of removal, and protection under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85

(“CAT”). As support for his claim of asylum, he stated that he

“fear[s] . . . being killed for the reason that I have helped [the

United States] against Mr. Muho” and an associate, “who are

allied to the Albanian government.” Rranci also alleged that

Muho’s henchmen had been asking Rranci’s family and friends

in Albania about his whereabouts. In a sworn affidavit dated

October 31, 2005, Rranci also explained that his understanding
 Nothing in the record explains how Muho learned that 2

Rranci had testified against him. Amici curiae the Asian

American Legal Defense and Education Fund, Frosina

Information Network, The International Women’s Human

Rights Law Clinic of the City University of New York School

of Law, the Muslim Bar Association of New York, and the

South Asian Bar Association of New Jersey, infer from the

record that the Government itself informed Muho, perhaps

during plea negotiations, that Rranci had made a statement and

would testify against him. Amici Curiae Br. at 5. But the record

contains no direct evidence that the Government did so.

6

from the DOJ was that Muho would be removed to Albania

“after about two months” (i.e., two months after his conviction).

Thus, Rranci believed that Muho would have returned to

Albania by the time he (Rranci) applied for asylum. (In

addition, by July 2005, a friend of Rranci’s brother told him of

spotting Muho in Albania.)

In his October 2005 affidavit, Rranci told of hearsay

evidence of the threat against his life. He stated that Muho’s

brother had communicated a lethal threat against him to a

friend’s father. Muho’s organization might have communicated

the threat this way, he conjectured, because his friend’s family

lived closer and would have been familiar to Muho’s crime

syndicate. Rranci stated that “Mr. Muho’s brother said that I put

Rustem [Muho] in jail and that whenever I returned to Albania,

Rustem and his friends would kill me.”2
 Rranci’s two descriptions of the DOJ’s alleged promise 3

stand in tension legally (though perhaps not in a layman’s

understanding) because declining to remove him to Albania in

particular does not foreclose the possibility of removing him to

another foreign country. Thus, stating that a removal

proceeding will be “waived” is not equivalent to stating he

“would not be deported to Albania.”

7

Rranci alleged in his March 2005 asylum application that

the DOJ promised that, if he cooperated with its prosecution of

Muho, “a removal proceeding would be waived.” In his

October 2005 affidavit, Rranci described his understanding of

the DOJ’s statements slightly differently, stating that the DOJ

pledged he “would be protected” and “would not be deported to

Albania.” He asserted that he would not have cooperated with 3

the Government but for these promises. For its part, the DOJ

stated that “Mr. Rranci was not promised that he would be given

permanent admission in exchange for his cooperation.” Farrar

Letter, supra. 

A hearing before an IJ to decide Rranci’s asylum

application was scheduled for August 2005. He had hired

attorney Natale F. Carabello, Jr. to represent him. During their

preparation for the hearing, Carabello told Rranci “that the

Court would ask questions for about three hours,” suggesting

that they had anticipated a full hearing regarding Rranci’s

asylum application. Nonetheless, before Rranci entered the

courtroom, Carabello went in without him and returned with a
8

recommendation that Rranci simply accept voluntary departure.

In his affadavit, Rranci stated: “The lawyer also told me that I

could be arrested if I did not say I wanted to leave. I was afraid.

I was forced into taking an agreement to leave the United States

because that is what the lawyer told me to do and I was afraid.”

The Government disputes this characterization, stating that the

IJ asked Rranci what he wanted to do and received the response

“I want to leave voluntarily.” The IJ granted voluntary

departure, giving Rranci the opportunity to leave the United

States on his own until December 2005. In the alternative, the

IJ ordered him removed.

Rather than leaving voluntarily, Rranci obtained new

(also his current) counsel and moved to reopen his case in

November 2005. He argued that his prior counsel (Carabello)

had provided ineffective assistance, which can provide a ground

for reopening a case. See, e.g., Zheng v. Gonzales, 422 F.3d 98,

106 (3d Cir. 2005). He also argued that the “state-created

danger doctrine,” which we discuss below, prohibited his

removal to Albania. The IJ denied the motion to reopen. Rranci

appealed to the BIA, which dismissed his appeal in June 2006.

Rranci now petitions our Court for review of the BIA’s decision.

II. Jurisdiction and Standard of Review

We have jurisdiction over final orders of removal under

§ 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1). Here, the IJ

granted Rranci the option of voluntary departure until December
9

2005 but, in the alternative, ordered him removed to Albania.

“An order of removal becomes final upon, inter alia, ‘a

determination by the [BIA] affirming such order.’ 8 U.S.C.

§ 1101(a)(47)(B)(i).” Yusupov v. Att’y Gen., 518 F.3d 185, 195

(3d Cir. 2008). The BIA’s dismissal of Rranci’s appeal from the

IJ’s denial of his motion to reopen amounted to an affirmance of

the order of removal. See id. (“The Supreme Court has specified

that administrative orders are final when they mark the

‘consummation’ of the agency’s decision-making

process . . . .”).

Because the BIA issued an opinion, rather than a

summary affirmance, we review the BIA’s (rather than the IJ’s)

decision. Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005).

We limit our review to the administrative record, 8 U.S.C.

§ 1252(b)(4)(A), and take the BIA’s “findings of fact [as]

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary,” id. § 1252(b)(4)(B). We

review the BIA’s denial of Rranci’s motion to reopen under the

abuse of discretion standard. In other words, the BIA’s “denial

of a motion to reopen may only be reversed if it is ‘arbitrary,

irrational, or contrary to law.’ ” Filja v. Gonzales, 447 F.3d 241,

251 (3d Cir. 2006) (quoting Sevoian v. Ashcroft, 290 F.3d 166,

174 (3d Cir. 2002)). Finally, we review the BIA’s legal

conclusions de novo, including both pure questions of law and

applications of law to undisputed facts. Francois v. Gonzales,

448 F.3d 645, 648 (3d Cir. 2006).
Rranci tries to distinguish Kamara as having different facts, 4

but the section of Kamara devoted to the state-created danger

exception does not rely on the particular facts of that case. He

also argues that Kamara concerned a “[c]onstitutional challenge

to immigration statutes” rather than an individual constitutional

claim. Pet’r’s Br. at 17. But the text of Kamara belies this

attempt at a distinction: “Kamara argues that in addition to

misapplying the proper legal standard to his CAT petition the

BIA, in issuing its final order of removal, violated his right to

substantive due process under the state-created danger

exception.” 420 F.3d at 216 (emphasis added).

10

III. The State-Created Danger Exception

Generally, due process of law does not create an

affirmative obligation for the Government to protect private

individuals from other private individuals. But the state-created

danger exception to that rule imposes on the Government “a

constitutional duty to protect a person against injuries inflicted

by a third-party when [the Government] affirmatively places the

person in a position of danger the person would not otherwise

have faced.” Kamara v. Att’y Gen., 420 F.3d 202, 216 (3d Cir.

2005). Rranci argues that the Government, by seeking his

cooperation in Muho’s prosecution and then ordering his

removal to Albania (where Muho, according to the record,

resides), has affirmatively placed him in danger. This argument

fails as a matter of law. We have stated unequivocally that “the

state-created danger exception has no place in our immigration

jurisprudence.” Id. at 217.4
11

Furthermore, Kamara’s applicability is beside the point.

Procedurally speaking, Rranci’s claim that the state-created

danger exception should apply to him was not an appropriate

ground for a motion to reopen. A pertinent BIA regulation

states:

A motion to reopen proceedings

shall state the new facts that will be

proven at a hearing to be held if the

motion is granted and shall be

supported by affidavits or other

evidentiary material. . . . A motion

to reopen proceedings shall not be

granted unless it appears to the

Board that evidence sought to be

offered is material and was not

available and could not have been

discovered or presented at the

former hearing . . . .

8 C.F.R. § 1003.2(c)(1). Rranci’s March 2005 asylum

application set out his concerns about the danger waiting for him

in Albania as a result of his cooperation with the Government’s

prosecution of the smuggler Muho. His subsequent October

2005 affidavit accompanying his motion to reopen added some

detail, but made no allegation of new facts that arose between

the August 2005 hearing before the IJ and the November

motion. Thus, Rranci’s state-created danger claim did not
12

satisfy the BIA regulation’s requirement of “new facts” for a

motion to reopen. To reopen his case, Rranci must rely on the

allegation that his prior counsel was ineffective.

IV. Ineffective Assistance of Counsel

Rranci claims that his prior counsel, Carabello, provided

him with ineffective assistance at his initial hearing before the

IJ in August 2005. In a related argument, Rranci alleges that his

acceptance of voluntary departure was not in fact voluntary,

because Carabello had frightened him into accepting that form

of relief. Our Court has recognized that ineffective assistance

of counsel in removal proceedings violates the Fifth

Amendment’s guarantee of due process of law. Fadiga v. Att’y

Gen., 488 F.3d 142, 155 (3d Cir. 2007). We have outlined two

sets of requirements, one procedural and one substantive, that

claims of ineffective assistance must meet.

A. Application of Lozada’s Procedural Requirements to

Rranci’s Claim

Our Court has essentially adopted the procedural

requirements that the BIA developed for ineffective-assistanceof-counsel claims. Id. To proceed with such a claim, the

allegedly aggrieved person must (1) provide an affidavit

attesting to the relevant facts, (2) inform former counsel of the

allegations and allow him an opportunity to respond, and (3) “if

it is asserted that prior counsel’s handling of the case involved
13

a violation of ethical or legal responsibilities, the motion should

reflect whether a complaint has been filed with appropriate

disciplinary authorities regarding such representation, and if not,

why not.” In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).

Rranci’s motion to reopen easily met the first prong by

including the sworn affidavit dated October 31, 2005. Though

most of the affidavit focuses on the merits of his asylum claim,

the final two paragraphs explain the circumstances of Rranci’s

acceptance of voluntary departure. The BIA did not mention the

first prong, suggesting that it found this requirement to be met

as well.

Most of the dispute between the parties focuses on

Lozada’s second prong. In an attempt to satisfy this

requirement, Rranci submitted with his motion to reopen a

second affidavit, this time from his current counsel, Rex Chen.

In this statement, Chen attested to a conversation he had with

Carabello regarding the latter’s representation of Rranci at the

IJ hearing. Chen informed Carabello that Rranci “was

considering a motion to reopen the case to pursue relief under

the state created danger doctrine.” Chen explained the nature of

that doctrine and also relayed Rranci’s allegation of intimidation

just before entering his hearing before the IJ. In response,

according to Chen’s affidavit, Carabello stated that he felt it was

in Rranci’s best interest to accept voluntary departure, denied

that he told Rranci he would be imprisoned or detained if Rranci

did not depart voluntarily, and conceded that he was unaware of
14

the state-created danger doctrine.

The BIA affirmed the IJ’s ruling that Rranci failed to

satisfy the second prong of Lozada, holding that Chen’s

affidavit failed to establish that Carabello was aware of any

allegations of ineffective assistance. It also stated that no

evidence was presented regarding Carabello’s opportunity to

respond to any such allegations.

We disagree. We have previously warned of the

“inherent dangers . . . in applying a strict, formulaic

interpretation of Lozada.” Xu Yong Lu v. Ashcroft, 259 F.3d

127, 133 (3d Cir. 2001). Lozada “serve[s] as a threshold and a

screening mechanism to help the agency assess the substantive

number of ineffective assistance claims that it receives.”

Fadiga, 488 F.3d at 155 (internal quotation marks omitted). But

it does not specify in detail what constitutes an opportunity for

prior counsel to respond. “[B]efore allegations of ineffective

assistance of former counsel are presented to the [BIA], former

counsel must be informed of the allegations and allowed the

opportunity to respond. Any subsequent response from counsel,

or report of counsel’s failure or refusal to respond, should be

submitted with the motion.” 19 I. & N. Dec. at 639. 

Chen’s affidavit satisfied this requirement. It provides

evidence that Chen informed Carabello that Rranci was

considering a motion to reopen the case and described both

arguments pursued before the IJ, the BIA, and our Court. We
15

have no evidence that Chen used the specific words “ineffective

assistance of counsel.” But he informed Carabello of Rranci’s

allegation of intimidation, which gave Carabello notice of the

substance of Rranci’s support for a motion to reopen. The

affidavit reflects that Rranci’s prior and current counsel

discussed their conflicting views of the merits of Rranci’s

asylum application and the relevant legal theories. In this

context, Carabello received adequate notice that Rranci was

contemplating an ineffective-assistance-of-counsel claim.

We also conclude that Rranci provided Carabello with an

opportunity to respond and submitted his response with the

motion. Specifically, Chen’s sworn affidavit contains his

firsthand account of Carabello’s response—that he did not know

of the state-created danger doctrine and continued to believe that

accepting voluntary departure was the appropriate legal strategy.

We acknowledge the BIA’s concern that Carabello did not have

an opportunity to respond, since he did not provide his own

written rebuttal. We agree that a separate response would be

ideal. Yet because Chen’s affidavit made the BIA aware of the

substance of Carabello’s response, and our Court has cautioned

against a “strict . . . interpretation of Lozada,” Xu Yong Lu, 259

F.3d at 133, we hold that Rranci satisfied Lozada’s second

prong in this instance.

Rranci concedes that he failed to file a bar complaint.

Thus, to satisfy Lozada’s third prong, he must explain why he

did not pursue disciplinary action against Carabello. 19 I. & N.
16

Dec. at 639. In his motion to reopen, Rranci cited both his lack

of English-language skills and time pressure. This excuse is off

point, since the filing of a disciplinary action would be an

appropriate task for his new counsel, rather than the petitioner

himself. Thus, Rranci’s difficulty with English and legal

standards is irrelevant to the third prong of Lozada. Rranci has

not provided adequate evidence of his diligence in investigating

whether disciplinary action would have been appropriate. See

Zheng, 422 F.3d at 106. Such diligence, and providing evidence

of it to satisfy Lozada’s third prong, would have been

preferable.

Despite the lack of a compelling excuse for not pursuing

disciplinary action against his prior counsel, we still consider

Rranci to have satisfied the necessary procedural requirements.

Where a petitioner succeeds on the first two prongs of Lozada

but does not file a disciplinary complaint or provide an

explanation, we have held that the third prong does not

necessarily sink a petitioner’s ineffective-assistance-of-counsel

claim. As we explained in Fadiga, as long as the policy

concerns on which the third prong is based have been served,

the complaint requirement may be excused. See 488 F.3d at

156–57. In that case, we held that Lozada did not bar a

petitioner’s claim even though the petitioner “neither filed a

disciplinary complaint nor explained his failure to do so.” Id. at

156 (internal quotation marks omitted).

In our case, we are satisfied that the policies underlying
 Congress had held a public hearing on the treaty in June 5

2004. See Law Enforcement Treaties: Hearing on Treaty Docs.

107-18, 108-6, 108-11, and 108-16 Before the Sen. Comm. on

Foreign Relations, 108th Cong. (2004). The Senate Foreign

Relations Committee approved the treaty in July 2005, just

before Rranci’s hearing before the IJ in August 2005. See Last

Week, Cong. Q. Today, July 29, 2005. A Westlaw search in the

Journals and Law Reviews database conducted before Rranci’s

17

Lozada’s third prong have been met. These policies include: (1)

identifying, policing, and correcting misconduct in the

immigration bar; (2) deterring meritless claims of ineffective

assistance of counsel; (3) highlighting the expected standards of

lawyering for immigration attorneys; (4) reducing the need for

an evidentiary hearing; and (5) avoiding collusion between

counsel and alien clients. See id. We consider these policies in

turn.

Rranci submitted enough in his motion to reopen to help

his prior counsel avoid the same mistakes in the future.

Although an argument based on the state-created danger

exception ultimately would have proven fruitless (because we

decided Kamara three weeks after Rranci’s initial IJ hearing),

Carabello failed to pursue any legal argument based on Rranci

having served as a witness against a prominent, dangerous

criminal. For instance, he failed to mention a relevant treaty, the

Convention Against Transnational Organized Crime. See infra

Part V. Awareness of legal doctrines that could provide 5
IJ hearing would have uncovered dozens of articles that discuss

the treaty and the relevant protocol dealing with human

smuggling. See, e.g., Bruce Zagaris, Revisiting Novel

Approaches to Combatting the Financing of Crime: A Brave

New World Revisited, 50 Vill. L. Rev. 509, 536–37 (2005)

(discussing the treaty and mentioning its provision for the

protection of witnesses).

18

protection for a Government witness like Rranci might have

altered Carabello’s strategic decision to recommend voluntary

departure. Carabello’s phone conversation with Chen made him

aware of the shortcomings of his representation by informing

him that legal doctrines arguably protecting witnesses do exist.

If presented with a similar case in the future, Carabello now has

information that will help him to do better. In this context,

filing a formal disciplinary proceeding against Carabello is not

necessary to advance the policy goal of identifying, policing,

and correcting misconduct.

The other policies behind Lozada’s third prong have been

served here as well. Because of the possibly significant errors

Carabello made, see infra Section IV.B, we cannot conclude in

this particular case that Rranci’s claim of ineffective assistance

is meritless. The phone conversation between Carabello and

Chen has highlighted the need for immigration lawyers to

perform research tailored to each client and to keep up with new

developments in this fast-changing area of law. That same

conversation provides evidence of a key source of the alleged
19

ineffectiveness—Carabello’s lack of awareness of legal

doctrines that potentially protect witnesses. That evidence

reduces the need for an evidentiary hearing about Carabello’s

representation of Rranci. Finally, there is no suggestion of

collusion between Carabello and Rranci.

In sum, although he fell short of the ideal, Rranci has

sufficiently addressed the procedural requirements of Lozada to

proceed with his ineffective-assistance-of-counsel claim.

B. Application of the Substantive Error-and-Prejudice Test

to Rranci’s Claim

Ineffective assistance of counsel can constitute a denial

of due process if an alien is prevented from reasonably

presenting his case. Xu Yong Lu, 259 F.3d at 131 (citing Lozada

v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988)). Our Court uses a

two-part test to assess error and prejudice, asking “(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).

1. Errors by Prior Counsel

Carabello made at least three possible errors that

competent counsel may not have made. First, as mentioned

above, he had not done enough research to know of the
20

impending treaty, let alone whether it would apply to Rranci’s

claim. The record shows that Carabello did inquire at the DOJ

to learn about Rranci’s cooperation with Muho’s prosecutors.

Arguably, this should have alerted Carabello to the uniqueness

of Rranci’s claim and to the need for further research. But it

appears that Carabello did not identify any legal theory that

might have helped Rranci obtain relief.

Second—even putting aside the allegation of

intimidation, which is disputed—Carabello abruptly switched

strategies and allegedly left his client confused. Having

prepared for a three-hour hearing, Rranci then heard a lastminute recommendation to accept voluntary departure. If

Carabello had done the legwork, he would have been prepared.

While we do not speculate as to the reasons for Carabello’s

sudden shift, we nonetheless do not understand why he would

recommend on these facts that Rranci forgo a hearing.

Third, Carabello recommended voluntary departure,

which is ordinarily understood as a privilege, but may not have

benefitted his client in this particular case. The facts that

Carabello had collected, the seriousness of the alleged threats

Rranci received, the corroboration by the DOJ of Rranci’s

cooperation, and the overall consistency and plausibility of

Rranci’s story, suggest that Carabello should have avoided

voluntary departure unless it was clear that a country other than

Albania would accept him. On this record, we do not know

whether Rranci could have departed to a country other than
21

Albania. Nonetheless, given the peril Rranci appears to face, it

is possible that Carabello erred by recommending voluntary

departure without knowing if there was any other country in

which he was eligible to stay.

In this unique context, we think the possibility of error is

strong enough that we remand to the BIA for consideration of

whether Rranci’s prior counsel erred. Fadiga, 488 F.3d at 161

(noting that our Court has the power to remand a case to the BIA

to determine whether an attorney’s representation was

substantively deficient where the procedural requirements have

been met).

2. Prejudice

For an alien to demonstrate that he suffered prejudice due

to his counsel’s unprofessional errors, he must show that there

was a “reasonable likelihood that the result would have been

different if the error[s] . . . had not occurred.” Id. at 159

(quoting United States v. Charleswell, 456 F.3d 347, 362 (3d

Cir. 2006)) (alteration in original). An alien “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. This

standard is not a stringent one.” Id. at 161 (citations and internal

quotation marks omitted) (analogizing to the standard for

prejudice in the context of Sixth Amendment ineffectiveassistance-of-counsel claims).
22

By accepting voluntary departure at his prior counsel’s

recommendation, Rranci gave up his claims for asylum,

withholding of removal, and CAT protection. Granted, he

seems to face an uphill battle on his asylum claim because he

has not alleged that he will be persecuted based on “race,

religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C.A. § 1101(a)(42)(A) (defining

“refugee” status, i.e., eligibility for asylum). No appellate court

to our knowledge has deemed “smuggling informants” to be a

social group that can serve as a protected ground for an asylum

claim. If Rranci’s asylum claim is not likely to succeed, then a

fortiori his claim for withholding of removal is not likely to

succeed either. See Janusiak v. INS, 947 F.2d 46, 47–48 (3d

Cir. 1991) (explaining that withholding of removal requires

demonstrating a higher probability of persecution than asylum).

We do not, of course, pass judgment on the merits of Rranci’s

asylum and withholding of removal claims. But for the purpose

of evaluating prejudice as part of his ineffective-assistance-ofcounsel claim, we focus on CAT protection.

The CAT states that “[n]o State Party shall expel, return

(‘refouler’) or extradite a person to another State where there are

substantial grounds for believing that he would be in danger of

being subjected to torture.” CAT art. 3(1). For the purposes of

the CAT, torture is defined as pain or suffering “inflicted by or

at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official public

capacity.” CAT art. 1(1); see 8 C.F.R. § 1208.18(a)(7)
23

(“Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have awareness

of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.”).

Our Court has explained what constitutes “consent or

acquiescence of a public official” for the purposes of protection

under the CAT. In Silva-Rengifo v. Attorney General, 473 F.3d

58, 64–65 (3d. Cir. 2007), we concluded that the BIA adopted

an incorrect legal standard requiring official “consent” or

“actual acquiescence,” id. at 70. “For purposes of CAT claims,

acquiescence to torture requires only that government officials

remain willfully blind to torturous conduct and breach their legal

responsibility to prevent it.” Id.; see also Zheng v. Ashcroft, 332

F.3d 1186, 1197 (9th Cir. 2003) (requiring only awareness and

willful blindness of government officials for CAT protection).

The key question in our case is whether a “reasonable

likelihood” exists that Rranci could prevail on his CAT claim if

his case were reopened. Fadiga, 488 F.3d at 159. The BIA held

that, in light of Kamara and the inapplicability of the statecreated danger exception, Rranci had experienced no prejudice.

For the reasons discussed in the remainder of this section and in

Part V below, we remand to the BIA for another hearing to

decide whether Rranci was prejudiced by prior counsel’s

performance.

To begin, Rranci has not been challenged on credibility
24

grounds. He has provided a consistent account of the threat to

his life he faces from Muho and his Albanian crime syndicate.

He couples this with an allegation of acquiescence by the

Albanian government (an allegation that appeared in his March

2005 application for asylum, withholding of removal, and CAT

protection). In his appendix, Rranci included two documents

detailing human trafficking in Albania. A BBC News article

notes that many of the traffickers in Albania work in collusion

with the “underpaid police force, who turn a blind eye to the

highly lucrative trade.” Claire Doole, Albania Blamed for

Human Trafficking, BBC News, April 17, 2001, at

http://news.bbc.co.uk/1/hi/world/europe/1281816.stm (last

visited July 29, 2008). A State Department country report on

Albanian human rights practices also mentions the problem of

police corruption and involvement in trafficking. It goes on to

state that victims of trafficking are unwilling to testify “due to

fear of retribution from traffickers and distrust of police.” U.S.

Dep’t of State, Albania: Country Report on Human Rights

Pra ctices – 2002 at 14 (2003), available at

http://www.state.gov/g/drl/rls/hrrpt/2002/18349.htm (last visited

July 29, 2008). “Lawyers and judges may also be manipulated

and bribed, permitting traffickers to buy their way out of

punishment if arrested.” Id.

Based on Rranci’s affidavit, the evidence of his

cooperation, and the circumstantial evidence of the threat he

faces, we cannot say that it is implausible that Rranci will be

tortured or killed if he returns to Albania. There may be a
25

“reasonable likelihood” that the pervasive bribery and

involvement of various Albanian-government officials would

constitute a “willful blindness” to the torturous conduct of a

human smuggler like Muho. Thus, we remand to the BIA for

a finding whether Rranci was prejudiced by Carabello’s

recommendation to forgo a full IJ hearing and accept voluntary

departure to Albania.

* * * * *

In sum, we hold that Rranci satisfied the procedural

requirements of Lozada. Because the BIA erred in applying the

law to the undisputed facts of this case, it abused its discretion

in dismissing Rranci’s appeal and affirming the IJ’s denial of his

motion to reopen. We remand for the BIA to consider the

substantive aspects of error and prejudice with regard to

Rranci’s claim of ineffective assistance of counsel in light of

this opinion. See Fadiga, 488 F.3d at 161. If he can

demonstrate error and prejudice, then his motion to reopen

should be granted and he should receive a new hearing before an

IJ on the merits of his claims for relief.

V. Convention Against Transnational Organized Crime

In closing, we note that Rranci’s case presents an issue of

first impression for our Court. He and amici curiae raise the

issue whether the Government’s obligations under protocols of

the United Nations Convention Against Transnational
 Congress did not ratify the Convention until October 7, 6

2005, and it did not take effect in the United States until

December 3, 2005. The Government states in its brief that the

treaty went into force generally on September 29, 2003. But the

State Department points out that “[a] State must become a party

to [the Convention] in order to become a party to its Protocols.”

26

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

Convention”), prohibit his removal. The Convention states:

“Each State Party shall take appropriate measures within its

means to provide effective protection from potential retaliation

or intimidation for witnesses in criminal proceedings who give

testimony concerning offences covered by this Convention . . . .”

Id. at art. 24(1) (emphasis added). Annex III to the treaty, the

Protocol Against the Smuggling of Migrants by Land, Sea, and

Air, is a supplement that is meant to be interpreted together with

Annex I (i.e., the main treaty). Id. at Annex III, art. 1(1).

Offenses under Annex III are viewed as offenses under the

Convention as whole, id. at Annex III, art. 1(3), and those

offenses include the smuggling of migrants, id. at Annex III, art.

6(1)(a). Thus, it appears that the witness protections of Annex

I would apply to witnesses such as Rranci who provided

statements or testified to crimes defined under Annex III of the

Convention, here Muho’s smuggling crimes.

We did not have the opportunity to address the

Convention in Kamara, which (as noted above) was decided

before the Convention took effect. Amici argue that the state- 6
See Press Release, U.S. Dept. of State, “Fact Sheet: United

Nations Convention against Transnational Organized Crime

( T O C ) ” ( N o v . 3 , 2 0 0 5 ), a t

http://www.state.gov/r/pa/prs/ps/2005/56006.htm (last visited

July 25, 2008).

27

created danger exception would be an appropriate vehicle to

incorporate the Convention’s provisions into United States law.

We need not reach that issue of treaty interpretation here. But

we note that the concept of protecting witnesses under the

Convention is distinct from the state-created danger exception.

The latter relates to constitutional due process of law, whereas

protection under the Convention would come from the United

States’ treaty obligations. We are skeptical that the state-created

danger exception, which extends well beyond the immigration

context, can appropriately accommodate the specific obligations

of the Convention.

The Government argues that the Convention introduced

no new protections for aliens. A Senate report and a letter from

President Bush have stated that current United States law

already complies with the Convention, obviating the need for

any implementing legislation. Gov’t’s Br. at 15 (citing S. Exec.

Doc. No. 109-4, §§ 1(c), 2(c), & 3(c), October 7, 2005;

President of the United States, Letter of Transmittal, Treaty

Doc. 108-16, February 23, 2004). Accepting that interpretation

as accurate, the absence of implementing legislation does not

imply that the BIA has no need to set out how existing law
28

complies with the Convention. On the contrary, it may provide

beneficial clarity to alien-informant cases for the BIA to explain

its understanding of the United States’ obligations toward aliens

who provide information in criminal cases.

The Government also argues that Rranci failed to exhaust

administratively any claim he might have had under the

Convention because he did not raise it in his motion to reopen

before the IJ and the BIA. This argument misses the mark. On

a motion to reopen, a petitioner claiming ineffective assistance

of counsel need not argue the merits of his claims—those will

receive a hearing if the petitioner’s motion to reopen is

successful. Cf. Fadiga, 488 F.3d at 163. It cannot be held

against Rranci that he failed to raise the issue of a treaty before

the IJ and the BIA in that particular procedural context, when

the task at hand was to reopen his case.

On remand, the BIA should determine how current U.S.

law reflects compliance with the specific provisions of the

Convention that are relevant to Rranci’s claim. We leave

interpretation of this issue to the BIA for consideration in the

first instance. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999). But the Convention calls into question whether the

Government may put Rranci into harm’s way in Albania after

using his cooperation to obtain a guilty plea from a significant

criminal. The BIA’s consideration of the Convention will factor

into the degree to which Rranci may have been prejudiced by his

prior counsel’s decision to recommend forgoing a hearing and
29

accepting voluntary departure.

* * * * *

For these reasons, we grant Rranci’s petition for review

and remand to the BIA for a new hearing on the substantive

components (error and prejudice) of his ineffective-assistanceof-counsel claim consistent with this opinion.