09-0780-ag

Hase v. Holder

BIA

Harbeck, IJ

A097 851 767

A097 851 768

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT H AVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL

RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITH ER TH E

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH TH E NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 2 day of February, two thousand ten. nd

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 ROBERT D. SACK,

9 PETER W. HALL,

10 Circuit Judges.

11 _________________________________________

12

13 ALMA HASE, EDISON CERI,

14 Petitioners, 

15

16 v. 09-0780-ag

17 NAC

18

19 ERIC H. HOLDER JR., U.S. ATTORNEY 

20 GENERAL,

21 Respondent.

22 _________________________________________

23 

24 FOR PETITIONERS: Michael J. Lacey, Grosse Pointe

25 Farms, Michigan.

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, Jennifer J. Keeney, Senior

28 Litigation Counselor, Nairi M.

29 Simonian, Trial Attorney, Office of
 Although both Petitioners are named in the instant 1

petition for review, only Alma Hase filed an application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Petitioner Edison Ceri

was listed as a derivative applicant. Accordingly, all

references to the Petitioner herein are to Alma Hase,

because only the events pertaining to her experiences in

Albania are relevant to the instant petition.

2

1 Immigration Litigation, Civil

2 Division, United States Department

3 of Justice, Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED, that the petition for review

8 is DENIED.

9 Petitioners Alma Hase and Edison Ceri, natives and

10 citizens of Albania, seek review of the January 30, 2009

11 order of the BIA affirming the June 21, 2007 decision of

12 Immigration Judge (“IJ”) Dorothy Harbeck denying Hase’s

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”), and their

15 motion to reopen. In re Hase, Nos. A097 851 767/768 1

16 (B.I.A. Jan. 30, 2009), aff’g Nos. A097 851 767/768 (Immig.

17 Ct. N.Y. City June 21, 2007). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 of the case.
3

1 I. Motion to Remand

2 Because Petitioner filed her motion to reopen during

3 the pendency of her appeal to the BIA, the BIA properly

4 construed the motion as seeking remand to the IJ. See

5 8 C.F.R. § 1003.2(c)(4) (providing that a motion to reopen

6 filed when an appeal is pending before the BIA may be deemed

7 a motion to remand and consolidated by the BIA and

8 considered along with the appeal). The BIA’s denial of a

9 motion to remand is held to the same substantive standard as

10 a motion to reopen or reconsider, i.e., abuse of discretion. 

11 Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 151 (2d Cir.

12 2005).

13 In her motion, Petitioner argued that remand was

14 warranted because she received ineffective assistance of

15 counsel. To demonstrate ineffective assistance, an alien

16 must show that competent counsel would have acted otherwise,

17 and that the alien was prejudiced by her counsel’s

18 performance. Romano v. INS, 399 F.3d 109, 112 (2d Cir.

19 2005). Here, the BIA determined that Petitioner’s motion

20 failed because her attorney’s refusal to call a particular

21 expert witness was a tactical decision, and thus

22 insufficient to satisfy this standard. Petitioner argues
4

1 that this determination was an abuse of discretion because

2 the expert’s testimony was crucial to the success of her

3 application for relief. This argument is unavailing. 

4 It is well established in the criminal-law context that

5 an attorney’s “failure to call a witness for tactical

6 reasons of trial strategy does not satisfy the standard for

7 ineffective assistance of counsel.” United States v. Ejman,

8 313 F.3d 741, 743 (2d Cir. 2002). We have also held that an

9 attorney’s “strategic decisions” in asylum proceedings

10 cannot be the basis for an ineffective assistance claim. 

11 See Changxu Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir.

12 2008). Here, we find no error in the agency’s conclusion

13 that counsel’s tactical decision not to call the witness did

14 not constitute ineffective assistance of counsel. See id.;

15 Ejman, 313 F.3d at 743. Accordingly, the BIA did not abuse

16 its discretion by denying Petitioner’s motion.

17

18 II. Asylum, Withholding of Removal, and CAT Relief

19 When the BIA does not expressly “adopt” the IJ’s

20 decision, but its decision closely tracks the IJ’s

21 reasoning, we may consider both the IJ’s and the BIA’s

22 opinions for the sake of completeness. Zaman v. Mukasey,
 Even if Petitioner’s brief could be construed as 2

disputing the agency’s past persecution finding, we find no

error in its decision. While tragic, the death of

Petitioner’s sister is not persecution Petitioner suffered. 

Compare Melger de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d

Cir. 1999)(rejecting petitioner’s argument that the murder

of her uncle could form the basis for a finding of past

persecution where there was no evidence of political

motivation for the killing), with Jorge-Tzoc v. Gonzales,

435 F.3d 146, 150 (2d Cir. 2006)(finding that, unlike in

Melger de Torres, the massacre of petitioner’s family

members by the military when he was a child, in conjunction

with substantial evidence the military was targeting ethnic

Mayans, could constitute past persecution); see also Shi

Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d

Cir. 2007)(“[A]pplicants can become candidates for asylum

relief only based on persecution that they themselves have

suffered or must suffer.”).

5

1 514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s

2 factual findings under the substantial evidence standard. 

3 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of

4 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). Questions

5 of law and the application of law to undisputed fact are

6 reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d

7 99, 110 (2d Cir. 2008).

8 Petitioner does not argue that the agency erred in

9 finding that she did not establish past persecution. Where 2

10 an applicant fails to demonstrate past persecution, she can

11 establish her eligibility for asylum by showing that she

12 subjectively fears persecution and that this fear is

13 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
6

1 169, 178 (2d Cir. 2004). The agency determined that

2 Petitioner failed to demonstrate an objectively reasonable

3 fear of persecution because: (1) recent U.S. State

4 Department reports indicated that, since the Democratic

5 Party gained control of the Albanian government in 2005,

6 supporters of that party no longer faced persecution; and

7 (2) regardless, Petitioner was not politically active, and

8 the evidence she submitted failed to show that her sister’s

9 murder was precipitated by her parents’ support for the

10 Democratic Party. 

11 Petitioner does not challenge these findings. Rather,

12 she argues that the agency erred by failing to consider her

13 particular social group claim. However, as the BIA found,

14 because Petitioner did not indicate that she was seeking

15 relief on a social group theory in her asylum application,

16 the IJ did not err by declining to address such a claim. 

17 Regardless, the agency reasonably found that Petitioner

18 failed to link her sister’s murder to her parents’ political

19 activities. See Melgar de Torres, 191 F.3d at 313.

20 Petitioner also argues that the agency erred by relying

21 on State Department reports, which she asserts are

22 unreliable. We disagree. Although we have previously
7

1 warned the agency “not to place excessive reliance on the

2 published reports of the Department of State,” such reports

3 are nonetheless “the result of estimable expertise and

4 earnestness of purpose,” Tian-Yong Chen v. INS, 359 F.3d

5 121, 130 (2d Cir. 2004), and are clearly probative, Tu Lin

6 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). In this

7 case, the agency found that the State Department reports in

8 the record indicated that Democratic Party supporters are no

9 longer being targeted in Albania. See Hoxhallari v.

10 Gonzales, 468 F.3d 179, 187 (2d Cir. 2007). Petitioner

11 fails to present any evidence contradicting these findings. 

12 See Xian Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

13 (2d Cir. 2006); Jian Hui Shao v. Mukasey, 546 F.3d 138, 171

14 (2d Cir. 2008).

15 For the foregoing reasons, the petition for review is

16 DENIED. 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

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