2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2015

Nazmi Rranci v. Attorney General United States

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3867

_____________

NAZMI RRANCI,

Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

Respondent

_____________

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

(Agency No. A096-077-564)

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

July 17, 2015

______________

Before: SMITH, GREENAWAY, JR., AND SHWARTZ, Circuit Judges.

(Filed: August 18, 2015)

______________

OPINION

______________

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

GREENAWAY, JR., Circuit Judge.

Nazmi Rranci, a native and citizen of Albania, petitions for review of an order of 

the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal 

proceedings. We will deny the petition for review. 

I. Background

Rranci was smuggled into the United States in January 2003 without being 

admitted or paroled. He was initially detained by immigration officials, but was paroled 

into the United States to assist in the investigation of a smuggling operation. 

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”). At his 

immigration hearing, Rranci withdrew his applications and requested to leave voluntarily. 

The immigration judge (“IJ”) granted voluntary departure, giving Rranci the opportunity 

to leave the United States on his own. In the alternative, the IJ ordered him removed.

Rather than leaving voluntarily, Rranci obtained new counsel and moved to reopen 

his case. He argued that he had not agreed to voluntary departure and that his prior 

counsel had provided ineffective assistance, which provides a ground sufficient for 

reopening a case. He also argued that the “state-created danger” doctrine prohibited his 

removal to Albania. The IJ denied the motion to reopen. Rranci appealed to the BIA, 

which dismissed his appeal, finding that Rranci failed to satisfy the procedural 

requirements for ineffective assistance of counsel claims, as put forth in In re Lozada, 19 
3

I. & N. Dec. 637, 639 (BIA 1988).1 On appeal, this Court disagreed, “hold[ing] that 

Rranci satisfied the procedural requirements of Lozada.” Rranci v. Att’y Gen., 540 F.3d 

165, 177 (3d Cir. 2008) (“Rranci I”). Accordingly, we “remand[ed] for the BIA to 

consider the substantive aspects of error and prejudice with regard to Rranci’s claim of 

ineffective assistance of counsel.” Id.2 Our Court also directed the BIA to consider in 

the first instance whether Rranci was prejudiced by his counsel’s failure to set forth a 

claim for relief from removal under the protocols of the United Nations Convention 

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

Convention”). 

On remand, the BIA found that even assuming Rranci’s counsel had committed 

error, Rranci failed to establish that he had suffered any prejudice. The BIA accordingly 

denied his motion to reopen. Rranci now petitions this Court for review of the BIA’s 

decision.

 

1 To satisfy Lozada’s procedural requirements, “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 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.’” 

Rranci v. Att’y Gen., 540 F.3d 165, 177 (3d Cir. 2008) (quoting Lozada, 19 I. & N. Dec. 

at 639). 

2 This Court also found that Rranci’s state-created danger claim failed as a matter 

of law. Rranci I, 540 F.3d at 171–72.
4

II. Analysis3

In his petition, Rranci argues that the BIA erred in concluding that: (1) Rranci was 

not prejudiced by his attorney’s errors;

4

and (2) the objectives of the Convention are 

satisfied through existing United States law. We address each of Rranci’s arguments in 

turn.

A. Prejudice 

Rranci argues that if he had received adequate representation, he would have 

proceeded to a hearing on the merits of his claims and would have had the opportunity to 

supplement the record. Rranci contends that the absence of such an opportunity, 

regardless of whether he has made a prima facie showing of eligibility for any form of 

relief or protection, is sufficient to demonstrate a reasonable probability of a different 

 

3 We have jurisdiction over final orders of removal under § 242(a)(1) of the INA, 

8 U.S.C. § 1252(a)(1). We review the BIA’s denial of Rranci’s motion to reopen under 

the abuse of discretion standard. In other words, “[t]he 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)). 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). 

4 Rranci also argues that the BIA applied the incorrect legal standard to evaluate 

the prejudice prong of his ineffective assistance of counsel claim. For an alien to 

demonstrate that he suffered prejudice, “he must show that there was a reasonable 

likelihood that the result would have been different if the errors had not occurred.” 

Rranci I, 540 F.3d at 176 (internal quotation marks and alterations omitted). Here, the 

BIA expressly applied that standard and concluded that Rranci failed to “establish a 

reasonable likelihood that [he] would have prevailed on his applications for asylum and 

withholding of removal if not for prior counsel’s errors.” App. 10. Accordingly, we find 

no basis in the record to support Rranci’s claim that the BIA applied an incorrect legal 

standard.
5

result. In support of his argument, Rranci cites to Fadiga v. Attorney General, 488 F.3d 

142 (3d Cir. 2007), and offers the novel proposition that this Court is only obligated “to 

determine if there is a reasonable likelihood that the result would have been different, not 

opposite nor better, just different.” Pet’r Br. 20. Rranci’s reliance on Fadiga is 

misplaced. 

In Fadiga, this Court clarified the appropriate test for determining prejudice in the 

context of removal proceedings. There, the Court concluded that the “‘reasonable 

likelihood’ standard—or its equivalent, the ‘reasonable probability’ standard—is also 

appropriate to the prejudice inquiry.” 488 F.3d at 159 (footnote omitted). Furthermore, 

the Court held that the reasonable likelihood standard “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.” Id. (emphasis 

added). 

Here, there is not a significant likelihood that the IJ would have entered an order 

of removal absent counsel’s errors. As correctly held by the BIA, Rranci has failed to 

demonstrate prima facie eligibility for asylum, withholding of removal, or protection 

under CAT. Rranci has not challenged any of these conclusions in his petition. 

Accordingly, Rranci has failed to establish that he was prejudiced.

B. The Convention

On remand, the BIA held that, contrary to Rranci’s arguments, “the [Convention] 

and its protocols do not create an independent basis for relief from removal that can be 
6

advanced in removal proceedings. Accordingly, [Rranci] was not prejudiced by attorney 

Carabello’s failure to advance a claim against removal under the [Convention] and its 

protocols before the [IJ].” App. 7. Furthermore, the BIA found that “the objectives of 

the [Convention] concerning the protection of witnesses and trafficking victims are 

advanced through existing legislation . . . . More specifically, the immigration laws and 

regulations offer certain aliens who are victims of, or informants and witnesses against a 

criminal organization eligibility for S, T, or U nonimmigrant status, if they satisfy other 

eligibility requirements and obtain the approval of the DHS.” App. 7. 

In his petition, Rranci does not challenge the BIA’s conclusion that the witness 

protection provisions of the Convention do not create any enforceable rights in agency 

removal proceedings or in the courts. In addition, Rranci does not challenge the BIA’s 

conclusion that Rranci was not prejudiced by his counsel’s failure to advance a claim 

against removal under the Convention. Instead, Rranci argues that “[t]he [BIA] 

incorrectly concluded that the objectives of the [Convention] are satisfied through” 

existing United States law. Pet’r Br. 20. 

As we noted in Rranci I, the Convention is relevant to a determination of “the 

degree to which Rranci may have been prejudiced by his prior counsel’s decision to 

recommend [foregoing] a hearing and accepting voluntary departure.” 540 F.3d at 179. 

As noted, the BIA found that the Convention does not create any independent basis for 

relief from removal that can be advanced in removal proceedings. Rranci has put forth 

no argument to challenge that ruling. In the absence of any right to relief under the 

Convention, Rranci cannot establish that he was prejudiced by his attorney’s failure to 
7

raise a claim under the Convention. Accordingly, we will deny the petition for review as 

to Rranci’s claim brought under the Convention. 

III. Conclusion

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