2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-21-2008

Sadiku v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2548

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-2548

___________

HAXHI PELLUMB SADIKU,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

Agency No. A73-616-135

Immigration Judge: Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 7, 2008

Before: MCKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed: May 21, 2008)

___________

OPINION

___________

PER CURIAM

Petitioner Haxhi P. Sadiku, a native and citizen of Albania, entered the United

States on April 14, 1997 on a nonimmigrant B-1 visa, with authorization to remain until

May 13, 1997. On November 10, 1999, he was served with a Notice to Appear, alleging

that he was removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8
2

U.S.C. § 1227(a)(1)(B), as an overstay. At a master calender hearing, he admitted the

factual allegations through counsel, Jose Camilo, Esquire, and conceded removability. 

On August 26, 1997, Sadiku filed his application for asylum under INA § 208(a), 8

U.S.C. § 1158(a), and withholding of removal under INA § 241(b)(3), 8 U.S.C. §

1231(b)(3), and the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18,

claiming a fear of persecution on account of political opinion. At a hearing on the merits

on July 10, 2000, the Immigration Judge denied his applications, concluding that he

lacked credibility and that conditions had changed in Albania. His application for

voluntary departure was denied. On February 5, 2003, the Board of Immigration Appeals

affirmed, specifically agreeing with the IJ’s findings concerning credibility. Sadiku did

not petition for review of this decision.

On March 9, 2007, Sadiku, through new counsel, Timothy G. Griffin, Esquire,

filed an untimely, see 8 C.F.R. § 1003.2(c)(2) (providing for 90 day filing deadline),

motion to reopen. He alleged that prior counsel inadequately supported and presented his

claim that he and his family suffered persecution under the old Communist regime and at

the hands of the new Socialist and Democratic Parties. Prior counsel did not, for

example, submit evidence that he bore physical scars from torture. Sadiku argued that the

filing deadline should be equitably tolled in his case because prior counsel had rendered

ineffective assistance in handling his asylum claim, specifically, in failing to prepare him

adequately to testify. He noted, however, that he had not filed a complaint with
3

disciplinary authorities because “no violation of applicable disciplinary rules is alleged

here.” A.R. 71. Several new items were submitted in support of the motion to reopen. 

Sadiku’s sister submitted a statement, dated March 19, 2007, in which she noted that his

wife was so distraught over the May 1996 stabbing that she suffered a miscarriage. 

Sadiku’s father submitted a statement, dated March 16, 2007, attesting to the

circumstances surrounding the stabbing and the miscarriage, A.R. 31. Other family

members submitted recently executed statements as well. In addition, a nurse, Liri Selim

Bici, submitted a statement, dated March 14, 2007, that she was present when three men

brought Sadiku to the hospital, wounded and bleeding from stab wounds, and that he

remained in the hospital for two weeks. A.R. 34.

On March 28, 2007, the Board of Immigration Appeals denied the motion to

reopen. The Board concluded that Sadiku’s allegations of ineffective assistance were

vague and they did not excuse the 4 year delay in filing. Citing Mahmood v. Gonzales,

427 F.3d 248, 252-53 (3d Cir. 2005), the Board held that Sadiku had failed to show

diligence in making his claims against prior counsel in a motion to reopen. In addition,

he had failed to comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637

(BIA 1988), for making a claim of ineffective assistance. See also Zheng v. Gonzales,

422 F.3d 98, 106 (3d Cir. 2005). The Board also declined to exercise its sua sponte

authority to reopen proceedings. Sadiku timely petitioned for review of this Board

decision in the Court of Appeals for the Second Circuit, and the matter was transferred
 In a statement, A.R. 585-88, and brief, A.R. 606-610, in support of this application, 1

Sadiku explained that he was born in Korca, Albania on April 3, 1965. In 1967, his

mother’s uncle was arrested by the Communist government of Albania for speaking out in

favor of Islam. He was hanged in the center of the city and his body was left hanging for

two days. The family was then forced to live in a closed compound for three years. 

Conditions were very harsh. There were no lights and no running water. There was little

food, and beatings were common. In 1969, when his family was freed, they settled in

Shingjergi but they continued to be persecuted as “enemies of the state.” Sadiku

supported the Democratic Party of Albania when it first came to power. On February 21,

1991, he and his brother were on their way to an anti-Communist demonstration when

they were arrested and detained for three days, during which time they were interrogated

and beaten by the police. In November 1991, he moved to Tirana and opened a small

store. He became a member of the Democratic Party and was involved in many meetings

in and around Korca. In the summer of 1993, the Socialists were protesting because their

leader, Fatos Nano, had been jailed by the Democratic government of Albania. The

protest took place in front of his store. The police beat the Socialist protesters with clubs

4

here for lack of venue.

We will deny the petition. We have jurisdiction to review final orders of removal

pursuant to 8 U.S.C. § 1252(a)(1). We are not authorized to review the Board’s February

5, 2003 decision, because the petition for review is timely, see 8 U.S.C. § 1252(b)(1)

(providing for thirty period for filing petition for review), only as to the March 28, 2007

decision. See Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405-06 (1995)

((holding that, in context of motion for reconsideration or to reopen, Congress envisioned

two separate timely petitions for review of two separate final orders). Here, Sadiku did

not seek review in this Court of the Board’s February 5, 2003 decision, and we thus have

no jurisdiction to address the arguments he raises in his brief concerning whether the IJ’s

and Board’s adverse credibility determination is supported by substantial evidence, see 8

U.S.C. § 1252(b)(4)(B); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).1
and Sadiku tried to intervene. This angered two security officials who then questioned

his loyalty to the Democratic Party, took him to a police station, and beat him on his back,

head and legs. On May 26, 1996, there were elections in Albania, and rumors that the

Democratic Party was trying to manipulate the results. Sadiku went to the polling place,

and remained at the center all day. He witnessed police cars with civilians inside, being

transported for the purpose of casting votes in favor of Democratic Party leader Sali

Berisha. Sadiku was asked to vote more than once and he refused. After returning home

for dinner, on his way back to the polling place, he was accosted by three men. His arms

were held by two of them, and a third stabbed him twice, in the left part of his torso just

below the rib cage, and again on his left shoulder. Someone took him to the hospital in

Tirana. He believed that this attack was a direct result of his having refused to participate

in manipulating the election for the Democratic Party. Photographs of Sadiku’s bare

torso showing scars appear in the Administrative Record, A.R. 538. On June 20, 1996,

his store was burned down, he thinks by the same people who stabbed him. He and his

wife left Tirana on September 9, 1996. His uncle was killed in April 1997 during the

violence that occurred when the pyramid investment schemes destroyed the Albanian

economy. After his father and brother complained about the lack of real democracy in

Albania, their house was burned down. The IJ had several problems with inconsistencies

in Sadiku’s application regarding events central to his claim, and he expected to see

hospital records relating to the stabbing. He also noted inconsistencies in Sadiku’s

assertions about how and when he entered the United States.

5

We review the denial of a motion to reopen under an abuse of discretion standard. 

Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992). The Supreme

Court has stated that “[m]otions for reopening of immigration proceedings are

disfavored,” noting that “as a general matter, every delay works to the advantage of the

deportable alien who wishes merely to remain in the United States.” Id. We will not

disturb the Board’s discretionary decision unless it was arbitrary, irrational or contrary to

law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). “An alien may file

one motion to reopen proceedings,” and such a motion “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
 There are exceptions to the ninety day deadline which are not applicable here. 8 2

C.F.R. § 1003.2(c)(3).

6

affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(A),(B). Ordinarily,

“[t]he motion to reopen shall be filed within 90 days of the date of entry of a final

administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

See also Luntungan v. U.S. Attorney General, 449 F.3d 551, 555 (3d Cir. 2006) (per

curiam). 

Sadiku’s motion to reopen was almost fours year late. Because the motion to

reopen was untimely, and none of the exceptions apply, the Board did not abuse its 2

discretion in denying it. Doherty, 502 U.S. at 323; Sevoian, 290 F.3d at 174. In

Mahmood, 427 F.3d at 250-51, we held that attorney conduct can provide a basis for

equitable tolling of the ninety-day deadline, but failure to exercise due diligence in

asserting ineffective assistance of counsel undermines any claim for equitable tolling of

the motion to reopen deadline, id. at 252-53. See also Borges v. Gonzales, 402 F.3d 398,

407 (3d Cir. 2005). Here, Sadiku waited almost four years after the Board’s decision to

file his motion to reopen, and he offered no reason for this lengthy delay. His bald

assertion that prior counsel did not tell him that his asylum application had been denied

does not account for the four year delay. 

In addition, in Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001), we held that the

Board’s procedural requirements for asserting a claim of ineffective assistance of counsel

are a reasonable exercise of the Board’s discretion. A motion based on a claim of
7

ineffective assistance of counsel should be supported by an affidavit attesting to the

relevant facts that sets forth in detail the agreement that was entered into with prior

counsel with respect to the actions to be taken. Furthermore, prior counsel must be

informed of the allegations and allowed the opportunity to respond. Finally, 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, and if not, why not. Lozada, 19 I.& N. Dec. at 638. 

We agree that Sadiku failed to comply with the Lozada requirements. Thus, the Board’s

denial of the motion as untimely was not arbitrary, irrational, or contrary to law, and the

Board properly exercised its discretion in denying the motion to reopen, see Zheng, 422

F.3d at 106. Because the motion was untimely, we may not consider its merits, and

specifically Sadiku’s contention that he had new evidence, the aforementioned

statements, that previously were unavailable and thus provided a basis for reopening

removal proceedings.

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