# Petition for Writ of Certiorari — Nikolbibabaj v. Mukasey (No. 07-1306) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1364%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 9 ) (?) Supreme Court, U.S. N°. —974306 APR 14 2008 In OpiC® OF THE CLERK Supreme Court of the Anited States e KRIST NIKOLBIBAJ, LINDITA NIKOLBIBIAJ, AND DONIKA NIKOLBIBAJ, Petitioners, Wis MICHAEL B. MUKASEY, Artrorney GENERAL, Respondent. ¢ On Petition For A Writ Cf Certiorari To The United States Court of Appeals For The Sixth Circuit 4 PETITION FOR A WRIT OF CERTIORARI with Appendix 4 * Marshal E. Hyman Russell Reid Abrutyn MARSHAL E.. HYMAN & ASSOCIATES 3250 W. Big Beaver Suite 529 Troy, MI 48084 248-643-0642 Fax 643-0798 Attorney for Petitioners *Counsel of Record April, 2008 LEGAL ADVANTAGE @ 432 Walnut Street @ Cincinnati, OH 45202 (800) 581-2252 QUESTIONS PRESENTED FOR REVIEW i. Petitioners filed a motion to reopen claiming that they received ineffective assistance of counsel in their asylum proceedings. Consistent with agency precedent, they notified their previous attorney of their allegations. Did the Sixth Circuit disregard agency and federal court precedent when it found that they did not give their previous attorney sufficient time to respond when that attorney never responded? 2: Other than the Sixth Circuit, the other circuit courts of appeal to address the issue permit substantial compliance with the procedural requirements for alleging ineffective assistance of counsel in immigration proceedings if _ the noncitizens have satisfied the underlying purposes of those requirements. Did the Sixth Circuit err by requiring “slavish adherence” to those requirements? 3. The Sixth Circuit denied Petitioners’ petitions for review after concluding that they did not show that, but for their attorneys’ mistakes, they would have been allowed to remain in the United States. Did the Sixth Circuit impose too high a burden and create a circuit split where the other courts of appeals and the agency require noncitizens to show only a reasonable probability of a different outcome? TABLE OF CONTENTS pages SESE ERD ORE i ee Sey do ay ae ce wi ii DOSE eee rr iv ees eo So ys 054, oe taw he 2 IE a eee oo ee os eee RS 2 Relevant Provisions Involved ................ 2 eo eas Sa da 5 Sn wee aes 5 Reasons For Granting The Writ .............. 12 I. Ineffective Assistance Of Counsel In Removal Proceedings Implicates Due Process And Fundamental Fairness Concerns........ 13 II. The Decision Of The Sixth Circuit Conflicts With Those Of Other Circuits Permitting Substantial Compliance With Procedural Requirements For Alleging Ineffective Assistance of Counsel And It Imposes An Unreasonable and Vague Burden..... 16 il III. The Ineffective Assistance Of Counsel Prejudiced Petitioners But The Sixth Circuit Imposed An Impossibly High Burden.............. IV. The Ineffective Assistance Of Counsel Prejudiced Petitioners And Deprived Them Of Meaningful Review Of Their Meritorious Asylum Claim........ RIN iN cna Gers Gr ea ews awa Appendix A — Order Denying Rehearing (1/17/08) ....... B — Circuit Court Opinion (8/10/07) ..........- C — Decision of the Board of Immigration PI) 8 ko oS eS D — Decision of the Board of Immigration PIE os oe ER E — Decision of the Board of Immigration PARE TA es a A ee F — Decision of the Board of Immigration PG CTI) os as Po ce we ee ws G — Oral Decision of the Immigration PU RIPE gid aes 2 nb wen we eee iil TABLE OF AUTHORITIES Cases Pages Ardestani v. INS, 502 U.S. 129 (1991)......... 13 Barry v. Gonzales, 445 F.3d 741 (4 Cir. 2006)......... 12,18 Dakane v. Attorney General, 399 F.3d 1269 CRP Oe on es 12-13, 18, 20-21 Fadiga v. Attorney General, O66 Fae £62 Go Cir. OCT) . ... 2 oe 12, 20 Gonzales v. Thomas, 547 U.S. 183 (2006) ...... 21 Grigoryan v. Mukasey, 515 F.3d 999 Se Ge Es ko i wre ee 12, 20-21 Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006)......... 12,18 Kenyeres v. Ashcroft, 538 U.S. 1301 (2003)....14 Lu v. Ashcroft, poe ee tar tae Cir: 2008}. 2. 12,18 Matter of Assaad, 231. &N. Dec. 553 (BIA 2003)...... 13, 20 Matter of Lozada, 191. & N. Dec. 637 (BIA 1988)... ... passim Matter of Y-L, 241.&N. Dec. 151 (BIA 2007)......... 14 Obleshchenko v. Ashcroft, 392 F.3d 970 (8 Cir. 2004) ......... 13, 20 Ramirez v. Gonzales, 2007 WL 2694012 (G™ Car, Sent. 34, 2007)... . 2 ne ees 18 Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9 Cir. 2001) ......... 12,18 Sako v. Gonzales, 434 F.3d 857 Oe NE is eh Sa oe 13, 18, 20 Scorteanu v. INS, aoe © .o0 207 (6" Cir: 2003)... . Se. 17 Xue v. BIA, a0 F .20 21] GC" Cm. 2006)... . 2. ee 15 Yang v. Gonzales, Rie fae igo (2* Cir. 2007)... ....:- 12,18 Zhang v. Gonzales, Soe Pe 107 (2 Cir. 2006)... . 2 2. 21 Statutes Pages are © FR eeIOD ws eve a Se ve kas 19, 22 tr © LD Bok os oe i ee we ce 14 Pee OIE) os eee cot eeueseeye 14 ME EE bc ca vo a doa aw ake wee 2 Regulations Pages re ee BA) ee eo ee eM hess 17 RE Ba BS 6) Se ee eS 17 Other Authorities Pages Fun. i. 0. 107-2o0, 116 Stat. 2135... ee. 8 vi PETITION FOR WRIT OF CERTIORARI Petitioners Krist Nikollbibaj, Donika Nikollbibaj, and Lindita Nikolibibaj respectfully petition that a writ of certiorari issue to review the opinion and order of the United States Court of Appeals for the Sixth Circuit entered in this case on August 10, 2007, and January 17, 2008, respectively. The Sixth Circuit decision conflicts with decisions from the Second, Third, Fourth, Fighth, Ninth, and Eleventh Circuits, which permit substantial compliance with the _ procedural requirements for claiming ineffective assistance of counsel in removal proceedings and_ where Petitioners complied with the agency’s requirements. The Sixth Circuit, in conflict with the Third, Fifth, Eighth, Ninth, and Eleventh Circuits, required Petitioners to show that, but for their previous attorneys’ errors, they would have been permitted to remain in the United States. This impossibly high standard is in conflict with decisions from other circuits and the agency., which only require noncitizens to show a _ reasonable probability that the errors affected the outcome. The Petitioners’ previous attorneys failed to timely file their asylum application, failed to file a brief on appeal, and failed to file a procedurally correct motion to reopen, resulting in the summary dismissal of their claim on procedural grounds. OPINIONS BELOW The opinion and orders of the Sixth Circuit Court of Appeals, App., :nfra, Al and Bl, are unreported. The opinions of the Board of Immigration Appeals, App., infra, Cl through F1, are unreported. The oral decision of the Immigration Judge, App., infra, Gi, is unreported. STATEMENT OF JURISDICTION The judgment of the United States Court of Appeals for the Sixth Circuit, App., infra, Bl, was entered on August 10, 2007. The court denied Petitioner’s timely petition for rehearing on January, 17, 2008, App., infra, Al. The jurisdiction of the Supreme Court is invoked under 28 U.S.C. § 1254(1). RELEVANT PROVISIONS INVOLVED At all times relevant to this case, 8 U.S.C. § 1158 provided in relevant part: (a) Authority to apply for asylum (1) In general Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title. (2) Exceptions (B) Time limit Subject te subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States. At all times relevant to this case, 8 U.S.C. § 1252 provided in relevant part: (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory),, including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is_ specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. (4) Scope and standard for review Except as provided in paragraph (5)(B)— (D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion. STATEMENT (i) Nature of the Case This case presents two important and recurring questions. The first is how much of an opportunity must a noncitizen give his previous attorney to respond to an allegation of ineffective assistance of counsel, where the attorney had two months to respond before the agency issued a decision, the attorney is facing criminal and disciplinary proceedings’ resulting from _ his representation of other noncitizens, and agency and federal court precedent have never before imposed a specific timetable. The second question is whether an aggrieved noncitizen must show that, but for the previous attorney’s mistakes, he would have won his case or whether, consistent with precedent from the agency and other circuits, the noncitizen must show only a reasonably probability of success or substantial prejudice. (ii) Factual Background Mr. Krist Nikollbibaj, his wife Lindita Nikollbibaj, and their daughter Donika Nikollbibaj (“Donika”) are Serbian citizens from the newly independent country of Kosovo.! On December 31, 1998, they were admitted to the United States after presenting Slovenian passports. Mr. Nikollbibaj was born on April 10, 1971 in Gjakove2, Kesovo. After he graduated high school in 1989, he completed one year of military service. He married Mrs. Nikollbibaj in 1995. Donika was born in Kosovo and their son, Daniel, was born in the United States. When he completed his military service, he returned home and began working with the Democratic League (“LDK”). The goal of the LDK was to liberate Kosovo through peaceful means. 1 Kosovo, over Serbian objections, declared its independence on February 17, 2008. https://www.cia.gov/library/publications/the-world- factbook/geos/kv. html (last visited April 9, 2008). It is not clear if Petitioners are citizens of Kosovo or Serbia. 2 Gjakove is called Djakovica by Serbia. Pe ee Oe Ge ee eR ee ee ag He helped his brother Xhevalin distribute the LDK literature. After Xhevalin came _ to America in 1992, Mr. Nikollbibaj formally joined the group and eventually became a party leader for his village. Before the war with Serbia started, most of the village belonged to the LDK and they held several secret meetings a week. When Mr. Nikollbibaj was young, the polite came to their house looking for his older brothers. They slapped him and questioned him about his brothers’ activities. While distributing supplies and literature for the LDK, Mr. Nikollbibajy was arrested and severely beaten on January 23 and June 7, 1998. The last time the police came, in July of 1998, they tore his wife’s shirt off. They threatened to do anything they wanted to unless he divulged the names of his political associates. The police arrested him and raped his wife in front of Donika. A week later, he and his family left Kosovo. Before he left Kosovo, the Kosovo Liberation Army (“KLA”), the ethnic Albanian guerilla army that fought Serbia, tried to recruit him. He refused because he wanted a peaceful solution to Kosovo's problems and did not support the KLA’s violent political agenda. Even though he did not join the group, the Serbian police sometimes accused him of supporting the KLA. The KLA declared him to be a deserter. They went from Kosovo to Hungary. Mr. Nikollbibaj) was afraid to remain in Hungary because he thought he would be sent back to Kosovo. Two weeks later, they went to Austria. They applied for asylum in Austria but their application was denied. They remained in Austria for about five or six months and then came to the United States, where Mr. Nikollbibaj’s brothers, Vitor and Xhevalin, could help him. Vitor came to the United States seeking asylum in 1985 and he is now a lawful permanent resident. Although he fled in fear of the Serbians, he is afraid to return to Kosovo because the KLA has targeted those who did not join them. Mr. Nikollbibaj will be viewed as a traitor and Serb- collaborator. Serb violence against ethnic Albanians in Kosovo reached genocidal proportions. Serbian forces went from town to town, murdering dozens or even hundreds of civilians in each town. Gjakove was the sight of mass murder and ethnic cleansing by the Serbians. The State Department reported that political killings continued into 2003. Among those killed or attacked were several prominent LDK officials, witnesses who testified against KLA members, and police officers who investigated the KLA. The KLA was responsible for killing Aibanian “collaborators” and it targeted rival political organizations, such as the LDK. When the Serbian forces withdrew from Gjakove, ethnic Albanians quickly filled the gap. There were numerous allegations that these security forces, which consisted of the former KLA members, attacked minorities and ethnic Albanians who were deemed to be insufficiently loyal to the forces. These security forces targeted Catholic Albanians and other perceived enemies in Gjakove. Gjakove had the largest Catholic population in Kosovo and they suffered harassment and intimidation following the war. (iii) Agency Proceedings Mr. Nikollbibaj hired David Paruch, a Michigan attorney, to file their asylum application. Mr. Paruch timely filed the application on December 30, 1999, but the Immigration and Naturalization Service (“INS”)$ returned it to him because he did not submit enough copies. Mr. Paruch resubmitted the application on January 6, 2000. The INS again returned the application. Mr. Paruch did not resubmit it until September 17, 2001. 3’ The Homeland Security Act abolished the INS effective March 1, 2003 and transferred its functions to various agencies within the Department of Homeland Security. Pub. L. No. 107-296, 116 Stat. 2135, 2192. The BiA and the Immigration Court remain part of the Department of Justice. This petition refers to the INS with respect to actions it took during its existence and to the appropriate agencies for events occurring after March 1, 2003. On November 8, 2001, the INS referred the asylum application to the Detroit Immigration Court because the Petitioners entered the United States under the Visa Waiver program. On May 14, 2004, following a merits’ hearing, the Immigration Judge (“IJ”) denied their applications and ordered them removed. The IJ concluded that they were barred from asylum because they were firmly resettled in Austria and did not file their application within one year of entering the United States. The IJ also concluded that (1) they were not_credible, (2) their claim lacked corroboration, (3) they did not suffer past persecution, and (4) they lacked a_ well-founded fear of future persecution. App. G1. Still represented by Mr. Paruch, Petitioners timely appealed to the Board of Immigration Appeals (“BIA”). Mr. Paruch sought, and obtained, an extension of the briefing deadline but failed to file a timely brief to the BIA. The BIA summarily dismissed Mr. Nikollbibaj’s appeal solely because Mr. Paruch did not file a brief. The BIA did not address the merits of the appeal. App. F1. Mr. Paruch moved the BIA to reopen and accept his late brief. He asserted that he missed the filing deadline because he was being treated for prostrate cancer. The BIA denied this motion on November 22, 2005, concluding that it was time barred and that its initial decision was proper given the failure to file a timely brief. App. E1. Mr. Nikollbibaj hired Alexander Azzam. At the time, and unbeknownst to Mr. Nikollbibaj, the State of Massachusetts and the BIA had suspended him from practicing law.4 On December 20, 2005, after being reinstated to practice, Mr. Azzam filed a motion to reopen with the BIA. He also petitioned the Sixth Circuit for review of the BIA’s November 22, 2005 decision.® The BIA denied Mr. Azzam’s motion on February 21, 2006, as number barred and because he did not submit proof that he complied with the procedural requirements for making a claim of ineffective assistance of counsel against Mr. Paruch. The BIA did not address the merits of the claim. App. D1. The odd thing about Mr. Azzam’s conduct is that he complied with the procedural requirements for making an ineffective assistance of counsel claim but never submitted the proof to the BIA, even after the Department of Homeland Security (“DHS”) noted the absence of the evidence. Mr. Nikollbibaj hired current counsel, who filed a motion to reopen with the BIA alleging that he was prejudiced by Mr. Paruch and Mr. Azzam’s ineffective assistance of counsel. The BIA denied this motion on May 4, 2006. The BIA concluded that the motion was number barred and that they 4 Mr. Azzam has since been convicted of defrauding his clients in the Washtenaw County, Michigan circuit court and is facing disciplinary proceedings in Massachusetts. 5 4s a further example of Mr. Azzam’s misconduct, he omitted Donika Nikollbibaj from the petition for review. The court refused to add her to that petition for review. 10 3 Ay ey did not satisfy the procedural requirements for making an ineffective assistance of counsel claim against Mr. Azzam because although they nctitied him of their allegations, they did not provide him with sufficient time to respond. The BIA also asserted that when they deniea Mr. Azzam’s the motion, they considered the merits of the ineffective assistance claim made against Mr. Paruch. App. Cl. Mr. Nikollbibaj timely appealed from the BIA’s denial of his three motions. The Sixth Circuit consolidated the three petitions for review. (iv) The Sixth Circuit’s Decision On August 10, 2007, the Court denied the petitions for review. Nuikollbibaj v. Gonzales, Nos. 05-4584, 06-3330, 06-3705 (6% Cir. Aug. 10, 2007) (App. B1). The court affirmed the BIA’s denial of the first two motions to reopen because the decisions were in accordance with the BIA’s regulations and procedural rules. Id. at 12-14. The court upheld the denial of the third motion to reopen because Mr. Azzam did not receive enough time to respond to the ineffective assistance of counsel claim. Id. at 15. Finally, the court found that the ineffective assistance did not prejudice Petitioners because they could not show that they would have received asylum but for the ineffective assistance of counsel. Id. at 17. The court denied their timely petition for rehearing on January 17, 2008. App. Al. 1] REASONS FOR GRANTING THE WRIT The Sixth Circuit’s decision conflicts with the decisions of the other courts of appeal and with the agency itself. The other courts that have addressed the issue have found that substantial compliance with the procedural requirements for alleging ineffective assistance of counsel is sufficient, where the underlying purposes of those requirements have been met. See Yang v. Gonzales, 478 F.3d 133, 142-143 (24 Cir. 2007); Habchy v. Gonzales, 471 F.3d 858, 864 (8 Cir. 2006); Barry _v. Gonzales, 445 F.3d 741, 746 (4t» Cir. 2006); Dakane v. Attorney General, 399 F.3d 1269, 1272, n.3 (11% Cir. 2005); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824-25 (9th Cir. 2001); Lu v. Ashcroft, 259 F.3d 127, 133 (34 Cir. 2001). The Sixth Circuit and the BIA imposed, after the fact, a requirement that an aggrieved noncitizen give his former attorney an unknown amount of time to respond. This new requirement will make it impossible for noncitizens to act diligently and comply with statutory and regulatory deadlines. Furthermore, the attorney in this case, Mr. Azzam, had two months to respond and has not responded in over two years. The Sixth Circuit’s decision imposes a substantially higher burden than that imposed by every other circuit. See, _e.g., Grigoryan _v. Mukasey, 515 F.3d 999, 1003 (9 Cir. 2008); Fadiga v. Attorney General, 488 F.3d 142, 159 (34 Cir. 12 2007) (agreeing with the government that the proper standard is “reasonable likelihood” or “reasonable probability”); Dakane, 399 F.3d at 1274-75 (11% Cir. 2005); Obleshchenko v. Ashcroft, 392 F.3d 970, 972 (8 Cir. 2004). The Sixth Circuit has imposed an impossibly high burden of proving that but for the attorney’s mistakes, the noncitizen would have been allowed to remain in the United States. See Sako v. Gonzales, 434 F.3d 857, 864 (6% Cir. 2006). When relief is discretionary, it is simply not possible for a noncitizen to prove this; especially where noncitizens with identical claims will receive different results from _ different adjudicators. Moreover, Mr. Paruch’s failure to timely file their asylum application or file a brief and Mr. Azzam’s failure to file a proper motion to reopen were per se prejudicial because these errors resulted in the denial of Petitioners’ claims, not on the merits, but on procedural grounds. A Ineffective Assistance Of Counsel In Removal Proceedings Implicates Due Process And Fundamental Fairness Concerns Although there is no right to appointed counsel, the BIA and all of the federal courts have found that ineffective assistance of counsel could infringe upon a noncitizens’ right to a full and fair hearing if the ineffective assistance prevented the noncitizen from “meaningfully presenting his or her case.” Matter of Assaad, 23 I. & N. Dec. 553, 558 (BIA 2003) (collecting cases). “We are mindful that the complexity of immigration procedures, and the 13 enormity of the interests at stake, make legal representation in deportation proceedings especially important.” Ardestani v. INS, 502 US. 129, 138 (1991). The harmful effect of ineffective assistance of counsel is especially felt in the asylum context where the wrongful denial of asylum results in the return of a refugee to the country of persecution and possible death or torture. An opportunity to present one’s meritorious grievances to a_ court supports the legitimacy and _ public acceptance of a statutory regime. It is particularly so in the immigration context, where seekers of asylum and refugees from persecution expect to be treated in accordance with the rule-of- law principles often absent in the countries they have escaped. Kenyeres v. Ashcroft, 538 U.S. 1301, 1305 (2003) (J. Kennedy). By their nature, asylum proceedings are cooperative, not adversarial, and the BIA has recognized that adjudicators have a duty to assist applicants in putting forth their claims. Matter of Y-L, 24 I. & N. Dec. 151, 161-62 (BIA 2007). Congress has protected the right of asylum seekers to seek judicial review of even discretionary denials at a time when it has otherwise limited the availability of other noncitizens to seek recourse in federal courts. 8 U.S.C. §§ 1252(a)(2)(B)ai, (b)(4)(D). _ Asylum petitions of aliens seeking refuge from alleged persecution are among the hardest cases faced by our courts. They are not games. And, despite their volume, these suits are not to be disposed of improvidently, or without the care and judicial attention ... to which all litigants are entitled. We should not forget, after all, what is at stake. For each time we wrongly deny a meritorious asylum application, concluding that an immigrant’s story is fabricated when, in fact, it is real, we risk condemning an individual to persecution ... we must always remember the toll that is paid if and when we err.” Xue v. BIA, 439 F.3d 111, 113-14 (24 Cir. 2006) (internal footnotes and citations omitted). The agency has held that ineffective assistance of counsel can violate a noncitizens’ due process right to a full and fair hearing when it results in prejudice. The federal courts have agreed with the agency’s conclusion because of the important due process rights at stake and the consequences of deporting a noncitizen, especially a refugee. The Decision Of The Sixth Circuit Conflicts With Those Of Other Circuits Permitting Substantial Compliance With Procedural Requirements For Alleging Ineffective Assistance of Counsel And It Imposes An Unreasonable and Vague Burden The BIA has established a procedure for noncitizens to follow when alleging ineffective assistance of counsel. In Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), the BIA held that a noncitizen alleging ineffective assistance of counsel must (1) submit an affidavit attesting to the relevant facts, (2) the noncitizen must notify previous counsel of the allegations and give the attorney an opportunity to respond, and (3) include proof that a complaint was filed with the appropriate’ disciplinary authorities or an explanation as to why none was filed. Id. at 639. The purpose of these requirements is to allow the BIA to assess the substance of the allegations, weed out meritless claims, allow an attorney whose reputation has been besmirched to respond, and to highlight the standards which should be expected of attorneys in immigration proceedings. Id. It is undisputed that Mr. Nikollbibaj satisfied these requirements against Mr. Paruch and at least two of the three requirements against Mr. Azzam. The issue is whether he gave Mr. 16 Azzam sufficient opportunity to respond to the allegations. App. B1. The Sixth Circuit concluded that Mr. Nikollbibaj did not provide Mr. Azzam _ with sufficient opportunity to respond. Nikollbibaj, supra, at 15. Mr. Nikollbibaj notified Mr. Azzam of the allegations on March 15, 2006 at the same time he filed his motion to reopen with the BIA. Mr. Azzam did not respond in the two months it took the BIA to decide the motion and, to date, Mr. Azzam has never responded. He also has not responded to the bar complaint filed’ in Massachusetts, where he is licensed, even though the disciplinary authorities have brought formal charges against him. He has since been convicted of defrauding his clients in the Washtenaw County, Michigan, circuit court. The BIA and the Sixth Circuit did not state how long an alien must wait after notifying the attorney before filing a motion to reopen. Without a more definite rule, aliens risk waiting too long and thereby having their motions to reopen denied on timeliness grounds. In this case, if Mr. Nikollbibaj waited for Mr. Azzam to respond, he would have missed the 30 day filing deadline for filing a motion to reconsider and the 90 day deadline for filing a motion to reopen. 8 C.F.R. §§ 1003.2(b)(2), (c)(2). For example, it took Mr. Paruch two months to respond to the complaint filed against him by Mr. Azzam. If Mr. Nikollbibaj waited two months for Mr. Azzam 17 ” to respond, the BIA would have denied his motion because he failed to exercise due _ diligence. Scorteanu v. INS, 339 F.3d 407, 414 (6 Cir. 2003) (denying petition for review because the alien did not exercise due diligence where he delayed filing a motion to reopen while trying to locate his previous attorney to obtain a response to the bar complaint). Prior Sixth Circuit jurisprudence did not impose on noncitizen a duty to give the previous attorney an opportunity to respond as long as the attorney is notified of the allegations. Sako, 434 F.3d at 863. In Ramirez v. Gonzales, 2007 WL 2694012, No. 06-3679 at *7 (6% Cir. Sept. 14, 2007), the court noted that aliens do not have to wait until they receive a response from the disciplinary authorities before filing a motion to reopen. Other circuit courts of appeal have rejected a “slavish adherence” to the Lozada requirements. These courts permit substantial compliance with those requirements so long as their purpose is satisfied. See Yang, 478 F.3d at 142-143 (24 Cir. 2007); Habchy, 471 F.3d at 864 (8 Cir. 2006); Barry, 445 F.3d at 746 (4 Cir. 2006); Dakane, 399 F.3d at 1272, n.3 (11 Cir. 2005); Rojas-Garcia, 339 F.3d at 824-25 (9% Cir. 2001); Lu, 259 F.3d at 133 (34 Cir. 2001). In this case, Mr. Nikollbibaj satisfied Lozada’s purposes, if not’ perfectly, then substantially. His previous attorneys and the state bar associations were put on notice of their mistakes, which Mr. Nikollbibaj detailed in his affidavit and supported with witness affidavits. Both attorneys had an opportunity to respond during the agency proceedings but Mr. Azzam never did. Had he done so, his response would have been made part of the record. His recent performance in this and other cases has since been the subject of criminal prosecution and state disciplinary proceedings. Many of the mistakes in this case were clear: the missing of the one year asylum deadline (8 U.S.C. § 1158(a)(2)(B)) for failure to file the proper number of copies, the summary dismissal of the appeal for failure to file a brief, and the summary dismissal of a motion to reopen for failure to include readily available proof of compliance with Lozada. After the fact and in disregard, not only for agency and Sixth Circuit precedence, but decisions from other circuit courts of appeal, the BIA and the Sixth Circuit erroneously concluded _ that Petitioners failed to comply with Lozada because they did not give Mr. Azzam sufficient time to respond to their allegations. This conclusion is in error and deprived Petitioners of administrative and judicial appellate review of their asylum claim, which they were entitled to as a matter of right. Ill. The Ineffective Assistance Of Counsel Prejudiced Petitioners But The Sixth Circuit Imposed An Impossibly High Burden The Sixth Circuit imposed too high a standard for evaluating whether Petitioners were prejudiced. It is impossible for noncitizens to show that, but for the mistakes, they would have been entitled to remain in the United States where entitlement to relief is discretionary and turns on a variety of subjective factors. Nikollbibaj, supra, at 17 (App. B1); see also Sako, 434 F.3d at 864. The Sixth Circuit’s rule is much stricter than that adopted by the agency. While the BIA has not specified an exact standard for showing prejudice, it has cited favorably to case law requiring a showing of “substantial prejudice.” Assaad, 23 I. & N. Dec. at 561-62. Ineffective assistance of counsel results in a due process violation if it prevents an alien from “reasonably presenting his case.” Lozada, 19 I. & N. Dec. at 638. Moreover, most, if not all, of the circuit courts of appeal have adopted the “reasonable probability” or “substantial prejudice” standard. See Grigoryan, 515 F.3d at 1003 n.1 (9t» Cir. 2008) (“reasonable likehhhood”); Fadiga, 488 F.3d at 159 (34 Cir. 2007) (agreeing with the government that the proper standard is “reasonable likelihood” or “reasonable probability”); Dakane, 399 F.3d at 1274-75 (11 Cir.) (same); Obleshchenko, 392 F.3d at 972 (8 Cir. 2004) (same). Counsel is not aware of any other circuits applying as high a standard as the Sixth Circuit. 20 Several circuits, in fact, have presumed prejudice where, as here, counsel fails to file an appellate brief. Grigoryan, 515 F.3d at 1003-04; Dakane, 399 F.3d at 1274-75. These courts have held that the denial of appellate proceedings entirely is per se prejudicial. Grigoryan, 515 F.3d at 1004-05; Dakane, 399 F.3d at 1274-75. In the asylum context, it’ is especially difficult for noncitizens to show that they would have received asylum but for their attorneys’ mistakes because asylum law involves many subjective determinations and different adjudicators may reach different conclusions on the same set of facts. See, e.g., Zhang v. Gonzales, 452 F.3d 167, 173-74 (24 Cir. 2006) (family members with similar claims received different decisions on their asylum applications). When the BIA has not considered the merits of an asylum claim or explained why it has denied the application, a federal court cannot determine if the alien would have received asylum but for the ineffective assistance of counsel without overstepping its authority as an appellate body. Gonzales _v. Thomas, 547 U.S. 183, 186-87 (2006). IV. The Ineffective Assistance Of Counsel Prejudiced Petitioners And Deprived Them Of Meaningful Review Of Their Meritorious Asylum Claim The many mistakes in this case, individually and in the aggregate, deprived Petitioners of due 21 process and prevented them reasonably presenting their case. Petitioners are from Gjakove, Kosovo, the scene of Serbia’s campaign of genocide, as confirmed by the Federal Bureau of Investigation. Mr. Nikollbibaj’s brother, Xhevalin, was granted asylum in the United States. Mr. Paruch tried, but failed to, timely file their asylum application. The INS twice rejected the application because Mr. Paruch did not include enough copies. As a result, the IJ found their application time-barred under 8 U.S.C. § 1158(a)(2)(B). Mr. Paruch then failed to file a brief to the BIA, because he was in the hospital, resulting in the summary dismissal of Petitioners’ appeal. App. Fi. Had he filed a brief, he could have submitted Petitioners’ rebuttal evidence and evidence of current country conditions. Because he did not file a brief, the BIA never reviewed the merits of the asylum claim. Mr. Nikollbibaj turned to Mr. Azzam to remedy Mr. Paruch’s mistakes but Mr. Azzam only compeunded them. Mr. Azzam delayed taking action until his license to practice law was restored. Although Mr. Azzam _ satisfied the Lozada requirements against Mr. Paruch, he failed to provide proof to the BIA, even after the DHS noted the absence of evidence. As a result, the BIA denied the motion, not on the merits, but again on procedural issues. As a result, the BIA never considered the merits of Petitioners’ claim that Mr. 22 Paruch provided ineffective assistance of counsel or that they suffered prejudice. Petitioners were deprived of appellate review, not once, but twice, by incompetent counsel. The BIA and the Sixth Circuit had the authority, and duty, to remedy these due process violations, but they failed to do so. As a result, Krist Nikollbibaj, Lindita Nikollbibaj, and their daughter Donika, are facing imminent removal. to the country that persecuted them. 23 CONCLUSION Petitioners respectfully submit that the Sixth Circuit erred in the following respects: Petitioners fully or substantially complied with the procedural requirements for alleging ineffective assistance of counsel. The’ ineffective assistance of counsel prejudiced them by depriving them of the ability to apply for asylum and to have meaningful appellate review of their application and there is a reasonable likelihood that they would have been granted relief. Therefore, Petitioners respectfully pray that the Court grant their petition for writ of certiorari and reverse the decisions of the Sixth Circuit Court of Appeals and the BIA. Respectfully Submitted, Marshal E. Hyman Counsel of Record Russell Reid Abrutyn APPENDIX SIXTH CIRCUIT COURT APPEALS FILINGS: Order Denying Rehearing, filed 01/17/08 Opinion, filed 08/10/07 BOARD OF IMMIGRATION FILINGS: Decision of the Board of Immigration Appeals, filed 05/04/06 Decision of the Board of Immigration Appeals, filed 02/21/06 Decision of the Board of Immigration Appeals, filed 11/22/05 Decision of the Board of Immigration Appeals filed 07/28/05 Oral Decision and Order of the Immigration Judge, filed05/14/04 Nos. 05-4584/06-3330/3705 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT KRIST NIKOLBIBAJ, ET AL., Petitioners, Vv. MICHAEL B. MUKASEY, ATTORNEY GENERAL, Respondent. ORDER BEFORE: MARTIN, BATCHELDER, and CLAY, Circuit Judges. The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of thecases. Accordingly, the petition is denied. A-] ENTERED BY ORDER OF THE COURT /s/ Leonard Green, Clerk Leonard Green, Clerk NOT RECOMMENDED FOR FULL-TEXT PUBLICATION Nos. 05-4584; 06-3330;06-3705 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT KRIST NIKOLLBIBAJ, et al., Petitioners, Vv. ALBERTO GONZALES, ATTORNEY GENERAL Respondent. ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS BEFORE: MARTIN, BATCHELDER and CLAY, Circuit Judges. CLAY, Circuit Judge. Petitioner Krist Nikollbibaj, his wife, Lindita Nuikollbibaj, and daughter, Donika Nikollbibaj (collectively, “Petitioners’)' applied for 1) asylum under the "The record is unclear whether Petitioners’ last name is “Nikolbibaj”* or “Nikollbibaj.“ Compare J.A. 474 with J.A. 465. This opiriionuses “Nikollbibaj,” the B-1 Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. § 1158; 2) withholding of removal under INA § 241 (b)(3), 8 C.F.R. §208.16; and 3) protection under the United Nations Convention Against Torture (“Torture Convention”), 8 C.F.R. § 208.16. An Immigration Judge (“IJ”) denied Petitioners’ asylum applications on May: 14, 2004. The Board of Immigration Appeals (“BIA”) summarily dismissed Petitioners’ appeal and denied three motions to reopen. Petitioners appeal the BIA’s denial of the motions to reopen. For the reasons that follow, we AFFIRM the BIA’s decision and DENY the petitions for review. BACKGROUND Petitioners are ethnic Albanians from Kosovo and Roman Catholics. Petitioner “completed the middle school and the high school .... [iJn 1989,” (J.A. 369), and served for one year as a “foot soldier’ in the army of the former Yugoslavia, (J.A. 371). He maintains that his older brothers, Xhevalin Nikollbibaj (“Xhevalin”) and Vitor Nikollbibaj (“Vitor”), were actively involved in political activities in Kosovo. last name to appear in Petitioners’ passports. B-2 The record shows that “Serbian police authorities,” (J.A. 350), arrested and interrogated Xhevalin for “believing [in] human rights for Albanian people[,] ... talking, [] spreading mail, [and] trying to convince people” to support Kosovo independence, (J.A. 351). In 1992, Xhevalin came to the United States and was granted asylum. Notably, after leaving Yugoslavia, Xhevalin was convicted in absentia of making public political statements: ...on April 18, 1992 at about 9 p.m. in the restaurant RINIA in Djakovica, in the presence of a considerable number of patrons, [Xhevalin] did shout the slogans: “Kosovo a Republic,” “Kosovo Belongs to the Albanians,” and “We will Not Tolerate Serbian . Occupation, Because This Country Belongs Only to the Albanians,” - thereby committing a criminal act against the foundations of the social system of socialist self- management and the security of the [Socialist Federal Republic of Yugoslavia] under Article 114 of the Yugoslav Criminal Code. Whereupon .... the court hereby SENTENCES the defendant Xhevalin [ Ito a term of 5 (five) years in prison. (J.A. 476) (formatting added). Xhevalin’s persecution in Kosovo, as a result of his political activities, is well established in the record. With respect to Vitor, the record shows that he was involved with the Democratic League (“LDK”), a political party that “aim[s] [ ] to show to the world the massacres that [Albanian] people [have] suffered” in Kosovo. (J.A.372) Since the “former Yugoslavia was together, [ ] they used to call [LDK members] separatists” because LDK “wanted to separate Yugoslavia as a country.” (J.A. 325) Vitor testified that he start[ed] writing slogans on buildings. [LDK] wrote slogans, slogans all over the place. [LDK] want[ed] to separate from Yugoslavia; [ ] [and] wantfed] Kosovo to be a republic. And so in the meantime, a lot of police from Serbia was transported, and they came, and they sent them into Kosovo, and they started investigating [LDK].... Sometimes they beat [LDK members], sometimes they let [LDK members] go, sometimes threaten[ed] ... to kill [LDK members]. (J.A.326-27) Vitor was arrested “two times from home,” detained, interrogated, and beaten by the poiice. (J .A. 329) The record indicates that Vitor “left B-4 {Kosovo] because of a Serb abusement (sic) that they did to ... [him] and [his] family, for... anti-government ideas that [they] had.” (J.A. 324- 25) In 1985, Vitor came to the United States and applied for asylum, but became a “lawful permanent residen[t] through cancellation of removal before his asylum application was adjudicated.” (Pet. Br. at 13; see also J.A.323-24) Petitioner maintains that, like Xhevalin and Vitor, he joined LDK and became politically active. More specifically, he alleges that “[a]fter [he] completed military service ... [he] started to be involved with Democratic League.” (J.A. 372) According to Petitioner, together with [his] brother Xhevalin, {he] [ | spread ... papers. saying the Kosovo Republic. So, [he] helped [his] brother Xhevalin to distribute those papers .... [and] in 1992, [he] got the membership card of the Democratic League. (J.A. 374) Although he does not provide specific details, Petitioner maintains that the Serbian police targeted him and frequently detained and interrogated him because of his brothers’ and his own political activities. See, e.g., J.A. 382 (Petitioner alleges that Serbian police “question[ed] [him] a couple of times about [his] brothers.”). Petitioner alleges that, in the course of his involvement with LDK, “[he] was promoted” and became “head of the group for the village,” or “leader of the Village.” (J .A. 375) Petitioner affirms that he “led 10,000 LDK members in fhis] village.” (J.A.376) As a party leader, Petitioner's “duty was to tell the people ... to liberate Kosovo through peaceful means, not war:” Id. He held “secret meetings, and then, communicated with different people during those meetings.” Jd. With respect to these meetings, Petitioner testified ,as follows: Question: How often would you have these secret meetings? Answer: So there were about two, three days a week. During the difficult time when immediately before the war, then we had them more often. Question: How many people would be at each of these meetings? Answer: Around-sometimes there were 2,000, 3,000; sometimes there were 500, around 500. But most they were - some of them were scared of the police. Question: Where would you have these meetings? Answer: Sometimes we had them in secret places. Yeah, sometimes in_ the B-6 mountains where the police couldn’t see us. (J.A. 377) (formatting added). Petitioner affirms that before leaving Kosovo, the Kosovo Liberation Army (“KLA”),- an ethnic Albanian guerilla force fighting for Kosovo independence, “called on [him] and requested that [he] join them.” (J.A.385) Although Petitioner didnotjoin the KLA “[b]ecause [he] [ ] was for peace, not war,” (J.A. 3 86), the Setbian police “thought that fhe was] also fight{ing] for KLA,” (J.A. 400). Petitioner alleges that during his last encounter with the Serbian police, law enforcement officials “tore the shirt of [his] spouse off’ and “told [him] that they were going to do anything with [his] wife ... [and] kill {his} wife,” unless Petitioner disclosed “which party {he was] working for and who [he was] working with.” (J.A. 383) During this encounter, Petitioner was allegedly detained and taken to a police station. While Petitioner was detained, Petitioner’s wife was allegedly raped by five Serbian police officers in front of her daughter, mother-in-law, sister-in-law, and other family members. Petitioners fled Kosovo in July 1998, a week after the alleged rape. Petitioners traveled from Kosovo to Hungary. Because they were “afraid that [Hungary] might turn B-7 [them] back” to Kosovo, Petitioners traveled to Austria. (J.A. 384) They remained in Austria for “five, [or] six months,” (J.A. 392), living in a camp for asylum applicants, “in a room where slept on 100- or 200 people,” (J.A.415). Petitioners maintain that they applied for asylum, but Austria “denied [the] application for asylum.” (J .A. 392) After the Austrian asylum applications were denied, Petitioners traveled “from Austria ...to Germany, and from Germany ... to Holland” (J.A. 385) Finally, Petitioners entered the United States on December 31, 1998, with false “Slovenian passports” under the visa waiver program. (J.A. 385; see also 8 U.S.C. § 1187(a)). Petitioner maintains that “fijf [he] get[s] back to Kosovo, the Serbs will get back, and the KLA is going after everyone who has left Kosovo and didn't fight against the Serbs.” (J.A. 389) Essentially, Petitioner argues that he will be viewed as a traitor and Serb- collaborator, and that the KLA will target him because he refused to join the guerilla forces. On December 30, 1999, Petitioners retained an attorney, David Paruch (“Paruch”), and applied for asylum.’ Since the first asylum applications were “It is unclear whether Petitioners filed their first asylum applications on December 30, 1999, or B-8 rejected by the INS, Petitioners re-submitted the applications on January 6, 2000. The second asylum applications were also rejected. Petitioners did not resubmit the applications until September 17, 2001. See J.A. 294 (IJ indicates that the record contains “an administratively filed application [ for asylum] that was filed actually three times, or attempted to be fiied three times.”). On November 8, 2001, Petitioners were served with a “Notice of Referral to Immigration Judge,” (J.A. 509-14), pursuant to 8 C.F.R. § 208.2(b), because as aliens admitted under the visa waiver program, Petitioners waived the right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b). Petitioners appeared before an IJ and indicated that they were “seeking asylum and withholding [of removal] under the statute and the Torture Convention.” (J.A. 293) Since the IJ was “not sure [he] even had a valid asylum application before the Court,” Petitioners’ were directed to “[ffill out fa] December 31, 1999. Since Petitioners filed their last asylum application on September 17, 2001, the exact date of the first filing is not relevant for purposes of this appeal. B-9 new form .... [aJnd attempt to explain in that new form what happened” with their prior attempts to ale the asylum application. (J.A.297) The IJ held an evidentiary hearing on the merits of Petitioners’ asylum applications on May 14, 2004. At the hearing, Petitioner, his wife and brothers testified about their alleged persecution in Kosovo. Compared to his brothers’ accounts of their political activities and persecution, Petitioner’s testimony was vague and conclusory. Petitioners also proffered expert testimony on “Kosovar government and politics or Balkan government and politics,” (J.A. 429), from Bernd J. Fischer, Ph.D., a professor at Indiana University and Purdue University, (J.A. 457-64). Dr. Fischer testified that “the situation [in Kosovo] is rater chaotic” because “there was essentially [a] mini-civil war in Kosovo.” (J.A.431) He explained that not only are there l;hreats, there is’ actual retribution .. Kosovo has a fairly high.crime rate, and much of this crime is basically Albanian on Albanian crime; in other words, individuals who have taken it upon themselves to rid the ethnic Albanian community of individuals that they assume to be traitors. B-10 (J.A.435) Dr.-Fischer explained that the traitors are people who cooperated with Serbs during the war, those who were not sufficiently anti-Serb during the war, those who refused to participate in the war, those who left; and, on occasion. failed political asylum seekers.” Jd. Dr. Fischer testified that international and local law enforcement forces “are not particularly effective” in protecting the targets of these attacks. (J.A. 436) At the hearing, Petitioners also submitted country condition reports from the United States Department of State indicating that “Serbian forces killed up to 10,009 mostly male ethnic Albanians, often in brutal fashion.” (J.A.482) The reports indicate that in Kosovo “[v]irtually no town or settlement escaped the effects of Miulosevic’s campaign of ethnic cleaning, with reports of dozens, if not hundreds of civilians being murdered tn each town.” (J.A. 483) At the conclusion of the evidentiary hearing, the IJ denied Petitioners’ asylum applications, finding that Petitioners were ineligible for asylum because they “lived in Austria for five or six years,” (J.A. 30), and “beclaJme permanently resettled in B-11] Austria,” (J.A. 31);° and that the applications were untimely because they were “ultimately not filed until September 17, 2001,” (J.A. 32). The IJ “also reject[ed] the application on its merits,” finding that Petitioners were not credible because they “cannot tell a consistent or a straight story.” (J.A. 34) Petitioners filed a timely notice of appeal to the BIA. Paruch filed a motion for an extension of time to “complete briefing of [the] issues” because “the Easter Holiday and associated family issues[ ] uiterfere[d] with timely submission ofthe brief.” (J.A. 276) Although the BIA granted the motion, Petitioners failed to submit the brief by the April 20, 2005 deadline. On July 28, 2005, the BIA “summarily dismissed” Petitioners’ appeai, for failure to file a brief, pursuant to 8 C_F.R. § 1003.1 (d)(2)Q)(B). (J .A. 270) Petitioners did not file a petition for review from the BIA’s dismissal. On August 31, 2005, Petitioners filed a motion to reopen with the BIA, indicating that “at about the time thfe] briefwas due; [Paruch] underwent surgery for prostate cancer.” (J.A. 258) > The IJ found that Petitioners lived in Austria for five or six years. However, Petitioners’ testified that they lived in Austria for five or six months. Compare J.A. 30 with J.A. 392. Indeed, the record indicates that Paruch had “Laparascopic Prostatectomy with Robotic Assistance for Prostate Ct [sic].” (J.A. 271) | On November 22, 2005, the BIA denied the motion to reopen. The BIA stated that -”[iJnasmuch as it appears that the applicants are requesting that [the BIA] reconsider [the] prior decision ... the request for reconsideration was filed more than 30 days after [the] decision and, therefore, is untimely.” (J.-A. 12) The BIA acknowledged that Petitioners submitted “a hospital record showing that [Paruch] was admitted to the hospital on April 5, 2005, and discharged on April 7, 2005,” but noted that the brief was due on April 20, 2005, and that Petitioners “dfid] not. specify the length of the attorney’s recovery period.” Jd. The BIA stated that “the motion does not explain why the applicants waited more than 4 months after the briefwas due to file the request to consider the late-filed brief.” Id. After the BIA denied the first motion to reopen, Petitioners retained new counsel, Hani Alex Azzam‘ (“Azzam”), to file a second motion to reopen. On December 20, 2005, Azzam filed a motion to reopen Petitioners’ asylum case with the BIA raising an ineffective assistance of counsel claim, and petitioned this Court to review the BIA’s denial of the first motion to reopen.° The BIA denied Azzam’s motion on February 21, 2006, under 8 C.F.R. § 1003.2(c)(2), because “{t]he motion to reopen exceeds the numerical limitations for motions to reopen.” (J .A. 10) The BIA also found that Petitioners “failed to meet the requirements for making an ineffective assistance of counsel claim.” ‘The record shows that Azzam was “administratively suspended from the practice of law” in Massachusetts and with the BIA, from July 21, 2005, to October 26, 2005. (J.A. 164; see also J.A. 165) Petitioners concede that they did not know about Azzam’s suspension. Since Petitioners engaged Azzam to file a new motion to reopen after the BIA denied the first motion to reopen on November 22, 2005, it does not appear that Azzam represented Petitioners while he was suspended. ° Since Azzam failed to include Petitioner’s Wife in the petition for review to the Sixth Circuit, Petitioners filed a second petition for review. B-14 Id. More specifically, Petitioners “failed to provide either an affidavit in support of their motion or any evidence that they have given former counsel an opportunity to respond to their allegations” of ineffective assistance of counsel. Id. After the BIA denied Azzam’s motion to reopen, Petitioners retained Marshal Hyman (“Hyman”), the attorney currently litigating this case, as counsel. Hyman filed a petition for review from the BIA’s February 21, 2006 decision, and a motion to reopen with the BIA alleging that Petitioners were prejudiced by Paruch’s and Azzam’s ineffective assistance of counsel. The BIA denied this third motion to reopen on May 4, 2006, finding that it was “barred by numerical limitations.” (J.A.8) The BIA stated that it had already “considered the arguments as to ineffective assistance of counsel ... regarding the actions of [ ] former attorney, [ ] Paruch ... and decline[d] to revisit” that issue. (J.A.7) The BIA also found that it could not address the issue of Azzam’s ineffective assistance because Petitioners “failed to comply with [the] critical [ ] requirement” that “before 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.” (J .A. 8) (internal quotation B-15 marks and citation omitted). Petitioners filed a timely petition of review with this Court.® On appeal, Petitioners argue that the BIA erroneously denied the three motions to reopen. DISCUSSION Standard of Review This Court reviews the denial of a motion to reopen for an abuse of discretion. See, e.g., INS uv. Doherty, 502 U.S. 314, 323 (1992); see also INS uv. Abudu, 485 U.S. 94, 107 (1988) (holding that BIA reopening “decisions are subject to an abuse-of- discretion standard of review.”). “The [BIA’s] discretion is broad but it is not unlimited. It may not exercise its discretion in a way that 1s arbitrary, irrational or contrary to law.” Daneshvar v. Ashcroft, 355 F 3d 615, 625-26 (6 Cir. 2004) (citations omitted). “Cursory, summary, or _ conclusory statements are inadequate” in BIA decisions. Jd. cu (citations omitted). “In determining whether the [BLA] abused its discretion, this Court must decide whether the denial of [the] motion to reopen ... was made without a rational explanation, inexplicably © This Court has consolidated the three petitions for review in this case . departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particularrace or group.” Sako v. Gonzales, 434 F.3d 857, 863 (6 Cir. 2006) (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6 Cir. 2005)). Il. The Motions to Reopen A. Statutory and Legal Framework “The granting of a motion to reopen is [ ] discretionary, and the Attorney General has broad discretion to grant or deny such motions.” Doherty, 502 U.S. at 323 (internal quotation marks and citations omitted). Under 8 C.F.R. § 1003.2(a), {t]he [BIA] may at any time reopen or reconsider ... any case in which it has rendered a decision. A request to reopen . must be in the form of a written motion to the [BIA]. The decision to grant or deny a motion to reopen or reconsider ts within the discretion of the [BIA] .... The [BIA] has discretion to deny a motion to reopen even if the party mouing has made out a prima facie case for relief. 8 C.F.R. § 1003.2(a) (formatting and emphasis added). Under 8 C.F.R. § 1003.2(c)(1), B-17 motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an upportunity to apply therefore was afforded at the former hearing. 8 C.F.R. § 1003.2/2)(1).”[T]he motion to reopen shall be filed within 90 days ofthe date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a (c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2) (“[A] party may file only one motion to reopen deportation or exclusion proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.”). “Motions for reopening of immigration proceedings are [generally] disfavored,” Doherty, 502 U.S. at 323, because “[t]here is a strong public interest in bringing B-18 litigation to a close [] promptly,” Abudu, 485 U.S. at 107. B. The First Motion to Reopen The BIA dismissed Petitioners’ appeal for failure to file the brief on July 28, 2005. Under 8 U.S.C. § 1229a(c)(6)(C)(i),a “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) (6)(C)Gi). The record shows that the motion to reopen was filed on August 31, 2005, approximately one month after the BIA dismissed the case. Contrary to the BIA’s finding, the record indicates that Petitioners’ motion to reopen was filed within the ninety-day statutory time period. Nevertheless, in the motion to reopen, Petitioners requested thatthe BIA accept a brief more than four months after the April 20, 2005 filing deadline. Petitioners’ explained that they waited four months to file the brief because Paruch had surgery for prostate cancer and could not prepare the brief. The BIA found that the only document Petitioners submitted in connection with Paruch’s surgery was a hospital record which indicated that Paruch was admitted to the hospital on April 5, 2005, and discharged on April 7, 2005. Since the record did not contain any information about the length of Paruch’s B-19 recovery period or the extent of his incapacitation after the surgery, the BIA found that Petitioners’ contention that Paruch could not file the brief was unsubstantiated. Petitioners simply cannot show that the BIA’ s decision was an abuse of discretion because the brief was due on April 20, 2005, and Paruch may have been able to submit the brief after his surgery. Even if Paruch was incapacitated by the surgery, Petitioners could have requested an extension of time to file the brief. We find that the BIA did not abuse its discretion in denying the first motion to reopen because Petitioners failed to substantiate their claim that the brief could not have been filed on a timely basis. C. The Second Motion to Reopen The BIA denied the second motion to reopen because “[an] alien may [only] file one motion to reconsider a decision that the alien is removable from the United States.” 8 U.S.C. § 1229a( c)( 6)(A). “The [second] motion to reopen exceed[ed] the numerical limitations for motions to reopen.” (J.A. 10) Petitioners also “failed to meet the requirements for making an ineffective assistance of counsel claim” because they did not “provide either an affidavit in support of their motion or any evidence that they have given [Paruch] an opportunity to respond to their allegations.” Id. In Matter of Lozada, the BIA set forth procedures for asserting an ineffective assistance of counsel claim, 19 I. & N. Dec. 637, 639 (BIA 1998). In pertinent part, Lozada provides that: A motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts .. . that affidavit should include a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the respondent in this regard. Furthermore, before 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. Finally, if it is asserted that prior counsel's handling of the case involved a violation of ethical or legal respon- B-21 sibilities, the motion should reflect whether acomplaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not. The high standard announced here is necessary if we are to have a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board Id. (emphasis added). This Court has found that “[s]ound policy reasons support compliance with the Lozada requirements.” Hamid v. Ashcroft, 336 F.3d 465, 469 (6 Cir. 2003). “The requirements facilitate a more thorough evaluation by the BIA and discourag{e] baseless allegations.” Jd. (internal quotation marks and citation omitted) (alteration in original). The “failure to comply” with the Lozada requirements “results in a forfeiture of [the] ineffective-assistance-of-counse] claim.” Jd. Petitioners argue that Azzam complied with Lozada, but concede that the secon~ motion to reopen “failed to include proof that he complied with the [Lozada] procedural requirements.” (J.A. 118) Azzam’s actual compliance with Lozada does not cure Petitioners’ failure to include proof of compliance. B-22 Lozada expressly requires the submission of an affidavit and supporting documentation. The BIA did not abuse its discretion in denying the second motion to reopen because no evidence of compliance with Lozada was before the BIA when it denied the motion to reopen. D. The Third Motion to Reopen’ In the third motion to reopen, Petitioners sought to introduce new evidence of compliance with Lozada and raised new allegations of ineffective assistance of counsel against Azzam. The BIA found that the third motion was numerically barred, and that Petitioners failed to show that they provided Azzam with an opportunity to respond. to the allegations of ineffective assistance. Admittedly, the record indicates’ that Petitioners notified Azzam of their allegations on ’ Petitioners’ third motion was a motion for reconsideration. The BIA construed the motion as a motion to reopen because Petitioners raised new ineffective assistance of counsel claims against Azzam. See, e.g., Matter of Cerna, 20 1.&N. Dec. 399, 400 (BIA 1991) (holding that if a motion for reconsideration raises new arguments or evidence that was not previously in the record, it should be construed as a motion to reopen.). B-23 * a Maes Maech 15, 2006. However, the third motion to reopen, whic? .ncluded allegations of Azzam’s ineffective assistance, was filed on March 17, 2€96. “Even if [Petitioners] [ ] presented evidence that [they] notified” Paruch oftheir allegations, Petitioners have “failed to meet Lozada’s requirement that counsel be provided an opportunity to respond before filing the motion to reopen.” Asaba v. Ashcroft, 377 F.3d 9, 12 (1* Cir. 2004 ) (citation omitted). Because Petitioners filed the motion two days after notifying Azzam, they “afford{[ed] [Azzam] no opportunity to furnish a timely response and thus sidestepp[ed] Lozada’s requirement to submit any subsequent response from counsel! with the motion to reopen.” Reyes v. Ashcroft, 358 F.3d 592, 594 (9 Cir. 2004) (internal quotation marks and citation omitted). Simply put, two days were not sufficient to-provide Azzam with an opportunity to respond to the ineffective assistance allegations: See, e.g., Asaba, 377 F.3d at 12 (finding that “three days does not provide [counsel] an adequate opportunity to respond to the allegations.”) (internal quotation marks and citation. omitted). Therefore, we find that the BIA did not abuse its discretion in denying the third motion to reopen. B-24 III. Petitioners’ Ineffective Assistance of Counsel Claims Petitioners argue that the BIA erred in denying the motions to reopen because their ineffective assistance of counsel claims have merit. Contrary to Petitioners’ averments, the ineffective assistance of counsel claims are meritless. A. The Legal Framework _ for ineffective Assistance of Counsel Claims in Immigration Cases Since “[iJmmigration proceedings [ } are civil, rather than criminal, in nature[,] [ ] the Sixth Amendment guarantee of effective counsel does not attach.” Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)). “Nonetheless, petitioners in deportation proceedings enjoy Fifth Amendment Due Process protections.” Id; see also Dokic v. INS, No.92-3592, 1993 WL265166, at *3 (6™ Cir. July 15, 1993) (unpublished case). Ineffective assistance of counsel could constitute a denial of due process “if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lozada v. INS, 857 F.2d 10, 13-14 (1* Cir. 1988) (nternal quotation marks. and citations B-25 omitted); see, e.g., Hernandez v. Reno, 238 F.3d 50, 55 (i* Cir. 2001) (“[Wjhere counsel does appear for the respondent, incompetence in some situations may maké< the proceeding fundamentally unfair and give rise to a Fifth Amendment due process objection.”) (citation omitted); Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7 Cir. 1993) (“[C]lounsel at a deportation hearing may be so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause.”) (internal quotation marks and citation omitted); Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9" Cir. 1986). In the instant case, the record clearly shows that Paruch missed the deadline for filing the appeal brief with the BIA, and waited more than four months - until the BIA dismissed Petitioners’ appeal- to request that the BIA accept the untimely brief. Admittedly; Paruch’s conduct strongly suggests that Paruch’s representation failed to satisfy professional standards. However, to establish ineffective assistance of counse] Petitioners must have “a viable claim for discretionary relief.” Cortez-Herrera uv. Gonzales, No. 04-75735, 2007 WL 1482395, at *1 (9" Cir. May 22, 2007) (unpublished case). Petitioners must be prejudiced by counsel's ineffective assistance. B-26 “The alien carries the burden of establishing that ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to prove that he has suffered a denial of due process.” Huicochea-Gomez v. INS, 237 F .3d 696, 699 (6" Cir. 2001) (citation omitted) (expressly holding that the BIA’ s failure to accept an untimely brief does not amount to a denial of due process because petitioners were ineligible for cancellation of removal); see also Sako, 434 F.3d at 865 (“[T]he loss of a right to appeal the BIA’s decision to this court and the accrual of unlawful presence do not constitute prejudice under this circuit’s law.”) (citation and internal quotation marks omitted) (alteration in original); Komi uv. Gonzales, 186 F. App’x 597, 601 (6" Cir. 2006) (noting that “even if Petitioners’ ineffective assistance of counsel claim had met the Lozada requirements, they would still be required to show prejudice. The loss of the right to appeal is not sufficient prejudice; Petitioners must show that, but for their counsel’s ineffective assistance, they would have been allowed to remain in the country.”) (citation omitted). In this case, Petitioners cannot show that Paruch’s and Azzam’s ineffective representation constitutes prejudice because their asylum clatms are meritless. The merits of Petitioners’ asylum claims will be discussed below . B. The Legal Framework for Asylum Claims To be eligible for asylum, an alien must present evidence of actual past persecution, or have a well-founded fear of future persecution on account of race, religion, nationality, membership of a particular social group or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Singh uv. Ashcroft, 398 F.3d 396, 401 (6 Cir. 2005); INS uv. Cardoza-Fonseca, 480 U.S. 421, 438 (1987). An alien who satisfies the burden of showing past persecution is presumed to have a wellfounded fear of future persecution. 8 C.F_R. §§ 108.13(a) and 208.13(b)(1)(i); see also Ouda v. INS, 324 F.3d 445, 455 (6" Cir. 2003). The fear of persecution must be both subjectively genuine and objectively reasonable. Mikhailevitch v. INS, 146 F.3d 384, 389 (6 Cir. 1998). The fear of persecution may be established either through the production of specific documentary evidence or by credible and persuasive testimony. Id. Past persecution does not require corroborative evidence, Garrovillas v. INS, 156 F.3d 1010, 1016 (9% Cir. 1998), because an applicant’s “testimony ... if credible, may be sufficient to sustain the bandas of B-28 proof without corroboration,” 8 C.F.R. § 1208.13(a); see also Hassan v. Gonzales, 403 F.3d 429, 434 (6 Cir. 2005). The IJ’s_ credibility determinations are considered findings of fact, and are reviewable under the substantial evidence standard and “are treated as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Hassan, 403 F.3d at 434 (quotation and citation omitted); see also Abay v. Ashcroft, 368 F.3d 634, 637 (6" Cir. 200.4). Although the IJ’s credibility finding is afforded substantial deference, the finding should be supported by specific reasons. Daneshvar v. Ashcroft, 355 F.3d 615, 623 n.7 (6" Cir. 2004). “An adverse credibility finding must be based on issues that £0 to the heart of the applicant’s claim,” Sylla v. INS, 388 F.3d 924, 926 (6 Cir. 2004), and cannot be based on irrelevant inconsistencies, Daneshvar, 355 F.3d at 623 n.7. The IJ’s determination with respect to the availability of corroborating evidence cannot be reversed unless the Court finds that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. INA § 242(b)(4), 8 D.S.C. § I 252(b)(4). B-29 c. The IJ’s Credibility Determination Petitioners contend that they suffered past persecution in Kosovo on the basis of their political opinion and membership in the Democratic Party. In pertinent part, Petitioner argues that he was interrogated, detained, and beaten by Serbian police officers on numerous occasions. He alleges that his encounters with Serbian police resulted in injuries and that his wife was raped by Serbian police. Petitioners maintain that their testimony at the evidentiary hearing and corroborating evidence established their past persecution in Kosovo and support a reversal of the BIA decision. We find that Petitioners have failed to meet their burden of showing that they endured past persecution because their hearing testimony was vague and unsupported with independent evidence. 1. The Nature and Quality of Petitioners’ Testimony The IJ identified specific inconsistencies in Petitioner’s testimony that conflict with his asylum application. For example, in the asylum application, Petitioner indicated that he was “a member of the LDK [political party].” (J.A. 45) However, during the evidentiary hearing, Petitioner stated that “not only he was a member, but he was the leader ... he got a B-30 promotion when he got his membership for this organization in his home village, and that he had thousands of people that he led.” (J.A. 46) Petitioner proffered only vague and conclusory statements in support of this assertion, and failed to provide specific facts and details concerning the nature of his leadership role. Although Petitioner claimed to have been interrogated, arrested, detained, and beaten on numerous occasions by Serbian police, he failed to proffer specific or detailed testimony concerning his alleged persecution in Kosovo; he was simply unable to explain or describe the circumstances surrounding his persecution. See, e.g., J.A. 62 (noting that when Petitioner “was queried about his interrogations with the police .... he could not estimate the number of times; just many times.”); J.A. 63 (noting that “{Petitioner] was asked [ ] how often fhe was] questioned about the [political] party and [his] brothers” and he responded that “[he] cannot remember.”); J.A. 63 (“When asked how often” he was beaten by the police, “[Petitioner] said, ‘very’ .... [and] refused to even estimate the number of times.”). Petitioner failed to articulate meaningful responses to the questions he was asked at the hearing. Indeed, the record shows that Petitioner’s testimony was B-31 cursory and without meaningful elaboration, and did not reveal details of, or insight into, why or how Petitioner was detained; his treatment during his detentions; the conditions of his detentions; and the questions he was asked during his interrogations. Petitioner's testimony is plainly vague and ambiguous. As the IJ stated, Petitioner’s testimony about his past experiences in Kosovo was “vague and his memory [was] completely off base.” (J.A.63) We find that the IJ properly denied the asylum applications because Petitioner’s vague, conclusory and inconsistent statements support a finding that his testimony was not credible. 2. Independent Evidence The IJ concluded that Petitioner failed to corroborate his testimony with independent evidence. The record indicates that Petitioner produced some independent evidence, including the testimony of his brothers and a statement, or letter, from his parents. Although Petitioner’s brothers testified on behalf of Petitioners, they offered only vague and conclusory testimony about Petitioner being “almost beat [] to death’ and Petitioner's wife being “sexually abused.” (J.A. 57) The testimony did not provide specific facts or details to corroborate Petitioner's alleged persecution. Rather, the brothers’ testimony K-32 raised facts not discussed in the asylum applications. See, e.g., id. (noting that the asylum applications do not “mention[ ] any discrete harm, injury, abuse to the wife directly” and that the brothers’ testimony was “the first mention of anything that would indicate that [Petitioner's] wife ... had been sexually abused in any manner.”). Since the testimony proffered by Petitioner’s brothers does not support the allegations set forth in the asylum applications, the testim,ony cannot be given: great weight. With respect to the statement from Petitioner's parents, the IJ found that the letter “completely torpedoes [Petitioner’s} credibility.” (J.A. 55) ThelJ found that the statement was “fraudulent, false, and the’ applicant should have known that if he had even read the letter when it came in.” Jd. He indicated that the provenance of the statement was suspect and that Petitioners “could not tell the Court whether th[e] [statement] ha[d] ever been mailed to the United States.” (J.A. 54) Indeed, the record shows that although Petitioner’s parents live in Kosovo, “thi[e] document was faxed from Italy,” and that “[n]o one could explain [ ] how [it] was faxed from Italy.” Id. The contents of the statement also contradicted Petitioner's testimony because-it indicated that B-33 in the year of 1999 and in order to avoid being conscripted by the KLA ... (petitioner] has moved illegally to the United States. It also says that during and after the war {Petitioner] has been chased by the KLA .. . in order to become a member of [the KLA], whereas after the war .. . [Petitioner has been chased by the KLA] as a fugitive and deserter. (J .A. 55) Petitioner did not. leave Kosovo in 1999, he left in 1998; and he is seeking asylum because of alleged persecution perpetrated by the Serbian law enforcement authorities in connection with his political activities with the Democratic Party, not because of KLA persecution. Petitioner failed to reconcile these inconsistencies at the evidentiary hearing. The record shews that Petitioners failed to adequately connect the corroborating evidence to their testimony. Simply put, Petitioners failed to proffer adequate independent evidence to corroborate their allegations of past persecution. We find that independent evidence fails to substantiate Petitioners’ testimony. The IJ properly denied Petitioners asylum applications because the testimony lacked meaningful independent evidence. B-34 D. Reasonable Fear of Future Persecution In this case, Petitioners are not entitled to a rebuttable presumption that they have a well founded fear of future persecution because Petitioner failed to establish past persecution. 8 C.F.R. § 208.13 (b)()(); see also Ouda, 324 F.3d at 455. Since Petitioner “did not sustain his burden of establishing that he suffered past persecution, he [is] not entitled to the presumption under 8 C.F.R. § 208. 13(b)(1)(Q) ofa well-founded fear of suffering future persecution.” Mikhailevitch, 146 F.3d at 389; see also Ouda, 324 F.3d at 455. E. Application for Withholding of Removal To be eligible for withholding of removal, Petitioners must show that it is more likely than not that they will be persecuted on account of race, religion, nationality, membership in a particular social group or political opinion. See, e.g., 8 U.S.C. § 1231(b)(3); see also 8 C.F.R. § 1208.16(b). “[I]n order to qualify for withholding of removal, the petitioner[s] must establish that there is a clear probability that [they] will be subject to persecution if forced to return to [Kosovo].” Sarr v. Gonzales, 485 F.3d 354, 361-62 (6 Cir. 2007) (internal quotation B-35 marks and citations omitted). Petitioners “must demonstrate that it is more likely than not that he or she will be persecuted upon return” to Kosovo. Id. (internal quotation marks and citations omitted). Petitioners have failed to set forth specific facts and evidence that they have suffered past persecution. The testimony does not support a finding that Petitioners have a well-founded fear of future persecution. Therefore, we find that any relief under withholding of removal was properly denied. F. Application for Protection Under the Torture Convention Under the Torture Convention, Petitioners have the burden of showing that it is more likely than not that they will be tortured. 8 C.F.R. § 1208. 16(c)(2); see also Ali v. Reno, 237 F.3d 591, 596 (6" Cir. 2001). In pertinent part, torture is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any B-36 reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a); see also Mostafa v. Ashcroft, 395 F.3d 622, 625 (6 Cir. 2005). The Torture Convention prohibits the return “of an alien to a country where it is more likely than not that he will be subject to torture by a public official, or at the instigation or with the acquiescence of such an official.” In re G-A-, 23 I.&N. Dec. 366, 367 (BIA 2002) (citations omitted). Petitioner argues that he was interrogated and beaten by Serbian police officers on numerous occasions, and that his wife was raped. Since the testimony concerning the detentions, interrogations, beatings, and rape was vague and unspecific, Petitioners have failed to meet their burden of proof that they were tortured in Kosovo. See, e.g., Neztraj v. Gonzales, 207 F. App’x 550, 559 (6" Cir. 2006) (unpublished case). We find that any relief under the Torture Convention was properly denied. CONCLUSION For the foregoing reasons, we AFFIRM the BIA’s decision and DENY the petitions for review. B-37 ALICE M. BATCHELDER, Circuit Judge, concurring. I concur in full with Sections I and II of the lead opinion, discussing the BIA’s denial of Petitioners’ three motions to reopen. I agree with the lead opinion’s conclusion that Petitioners did not satisfy the procedural Lozada requirements for bringing an ineffective assistance of counsel claim in an immigration proceeding. Because it is clear that Petitioners did not comply with the Lozada requirements, I find it unnecessary to reach the merits of Petitioners’ ineffective assistance claim and do not join the lead opinion’s discussion of the merits, found in Section ITI. U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 File: A79 582 591 - Detroit Date: May 04, 2006 A79 582 592 A79 582 593 In re: KRJS'T NIKOLBIBAJ DONIKA NIKOLBffiAJ LINDITA NIKOLBIBAJ IN ASYLUM PROCEEDINGS PURSUANT TO 8 C.F.R. § 1208.2(c) MOTION ON BEHALF OF RESPONDENTS: Marshall E. Hyman, Esquire ON BEHALF OF DHS: Frank E. Ledda Assistant District Counsel APPLICATION: Reconsideration and reopening ORDER: PER CURIAM. This case was last before this Board on February 21, 2006, when we denied the respondents’ motion to reopen alleging ineffective assistance of previous counsel as numerically “barred and not meeting the criteria set out in Matter of zada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1* Cir. 1988), for establishing such a claim. The record reflects that on November 22, 2005, the Board had denied the respondents’ prior motion to reopen dated August 31, 2005. On March 21, 2006, the respondents filed what is termed a motion to reconsider but 1s more accurately described as a motion to reopen again alleging ineffective assistance of counsel. The Department of Homeland Security has filed an opposition to the respondents’ motion to reopen. The motion will be denied. If the respondents’ motion were treated as‘one to reconsider, denial would be appropriate. When deciding a motion to reconsider, the Board considers the case as though the decision in the case on the record before us had never been entered. If the respondent was eligible for relief at the time of the original decision, then in reconsidering the decision, we treat. his status as that which it had been at the time of the initial decision. “The very nature of a C-2 motion to reconsider is that the original decision was defective in some regard.” Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991). We have reviewed the record, as well as both the Immigration Judge’s and this Board’s prior decisions. The respondents have failed to show any particular errors of fact or law in our decision that would warrant reversal. See 8 C.F.R. § 1003.2(b)(1). We considered the arguments as to ineffective assistance of counsel included in this motion regarding the actions of their former attorney, David Paruch, before rendering a decision in this case and decline to revisit them. Therefore, we find reconsideration is not warranted on that basis. The respondents’ motion can be more accurately described as a motion to reopen because it seeks to introduce new previously unavailable evidence, and raises new allegations of ineffective assistance of counsel. At the outset, we note the motion to reopen exceeds the numerical limitations for motions to reopen. The regulations provide that motions to reopen shall be limited to one motion to reopen, with certain exceptions not pertinent here. See 8 C.F.R. § 1003.2(c)(2). The respondents third motion to reopen would therefore appear to be barred by numerical limitations. We observe, however, in the motion now before us, the respondents raise an ineffective assistance of counsel claim with reference to the actions of Hani Alex Azzam, the attorney who had filed their previous motion to reopen alleging ineffective assistance of counsel. As we stated in Matter of Lozada, supra, when allegations of a denial of due process are premised on a claim of ineffective assistance of counsel, especially in light of tne fact that the Board receives many such claims, the alien must meet the three specified criteria in order to assist the Board in assessing the validity of the claim. The second of those criteria is that “before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond.” Jd (emphasis added). We observed that this requirement exists to provide attorneys “whose integrity or competence is being impugned, {the opportunity] to present [their] version of events,” if they choose to do so, and serves to discourage baseless allegations. Jd. The lead: respondent has failed to comply with this critical Lozada requirement. While the lead respondent indicates that he submitted evidence that he filed a complaint with the C-4 Office of the Bar Counsel of the State of Massachusetts concerning his former counsel's performance, on March 15, 2006, he has provided no evidence that he informed former counsel of the allegations against him with sufficient time to allow him the opportunity to timely respond before filing his motion with the Board on March 21, 2006. See Matter of Lozada, supra at 639. Notice to the attorney whose actions are being challenged, with sufficient time to respond, is a central element in this Board’s capacity to adjudicate “ineffective assistance ‘of counsel” claims. Consequently, as the lead respendent has not complied with this critical requirement for reopening based on a claim of ineffective assistance of counsel, he has _ not established that reopening is warranted on that basis, and the motion will be denied. Accordingly, whether treated as a motion to reconsider or as a motion to reopen, the motion is denied. Further, in view of our disposition fo the respondents’ motion, the request for a stay of removal] will also be denied. FURTHER ORDER: The request for a stay of removal is denied. /S/_ Roger Pauley Cee FOR THE BOARD C-5 U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 File: A79 582 591 - Detroit Date: Feb. 21, 2006 A79 582 592 A79 582 593 In re: KRIST NIKOLBIBAJ DONIKA NIKOLBIBAJ LINDITA NIKOLBIBAJ IN ASYLUM PROCEEDINGS PURSUANT TO 8 C.F.R. § 1208.2(c) MOTION ON BEHALF OF RESPONDENTS: H..Alexander Azzam, Esquire ON BEHALF OF DHS: Frank E. Ledda Assistant District Counsel APPLICATION: Reopening ORDER: PER CURIAM. This case was last before this Board on November 22, 2005, when we denied the respondents’ motion to reopen dated August 31, 2005. On December 20, 2005, the respondents filed a D-1 second motion to reopen before the Board of Immigration Appeals. The Department of Homeland Security has filed an opposition to the respondents’ motion to reopen. The motion will be denied. The motion to reopen exceeds the numerical limitations for motions to reopen and will be denied. The regulations provide that motions to reopen shall be limited to one motion to reopen, with certain exceptions not pertinent here. See 8 C.F.R. § 1003.2(c)(2). The respondent's second motion to reopen is therefore barred by numerical limitations Next, the respondents raise an ineffective assistance of counsel claim on appeal. However, the respondents have failed to meet the requirements for making an ineffective assistance of counsel claim as set forth in Matter of Lozada, 19 1&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1% Cir. 1988), which requires that the alien must layout, in a detailed affidavit, the agreement between the alien and the representative; the alien must’ give the representative the opportunity to respond to the allegation of ineffectiveness, and the alien must file a complaint with the appropriate disciplinary authority or adequately explain why no filing was made. See also Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6"" Cir. 2001). In this case, the respondents D-2 have failed to provide either an affidavit in support of their motion or any evidence that they have given former counsel an opportunity to respond to their allegations. Accordingly, the motion is denied. The request for a stay 1s also dented. /s/ Anthony C. Moscato _ FOR THE BOARD U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review File: A79 582 591 - Detroit 5 A79 582 592 A79 582 593 KRIST NIKOLBIBAJ DONIKA NIKOLBIBAJ IN ASYLUM PROCEEDINGS PURSUANT TO 8 C.F.R. § 1208.2(c) MOTION ON BEHALF OF RESPONDENTS: David H. Paruch, Esquire ON BEHALF OF DHS: Frank E. Ledda Assistant Chief Counsel. APPLICATION: Reopening; reconsideration ORDER: PER CURIAM. This case was last before us on July 28, 2005, when we summarily dismissed the applicants’ appeal for failure to file a brief. On August 31, 2005, the applicants filed a motion to reopen requesting that we consider their late-filed brief. The Department of Homeland Security (the “DHS,” formerly the Immigration and Naturalization Service) opposes the motion. The applicants’ brief was originally due March 30, 2005. However, rwpon their request, we extended the filing deadline to April 20, 2005. The applicants' attorney contends that he underwent prostate surgery around the time the brief was due and that he was notable to complete the brief while recuperating from his surgery. Inasmuch as it appears that the applicants are requesting that we reconsider our prior decision, we find that the request for reconsid: ‘ation was filed more than 30 days after our decision and, therefore, is untimely. See 8 C.F.R. § 1003.2(b)(2). Moreover, inasmuch as the applicants' brief was not timely filed, we find no error off act or law in our prior decision. See 8 C.F.R. § 1003.2(b)(1). To the extent that the applicants' attorney now contends that he was unable to timely file the brief and that we should accept the late-filed E-2 brief, we find that reopening is not warranted. The motion includes a copy of a hospital record showing that the applicants’ attorney was admitted to the hospital on April 5, 2005, and discharged on April 7, 2005. The motion does not specify the length of the attorney's recovery period. Lastly, the motion does not explain why the applicants waited more than 4 months after the brief was due to flle the request to consider the late-filed brief. Accordingly, the motion is denied. /s/_ Roger Pauley FOR THE BOARD E-3 U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 ee ee ee ee ee ee File: A79 582 591 - Detroit Date: July 28, 2005 In re: NIKOLBIDAJ, KRISTIN ASYLUM PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: PARUCH, DAVID H. ORDER: PER CURIAM. The appeal is summarily dismissed under the provisions of 8 C.F.R. § 1003.1 (d)(2)G)(E). The appellant checked the block on the Notice of Appeal (Form EOIR-26) indicating that a separate written brief or statement would be filed in support of the appeal. This block is immediately followed by a clear warning that the appeal may be subject to summary dismissal if the appellant indicates that such a brief or statement will be filed F-] and, within the time set for filing, fails to file the brief or statement. The appellant was granted the opportunity to submit a brief or statement in support of the appeal. However, the record indicates that the appellant did not file such brief or statement, or reasonably explain the failure to do so, within the time set for filing. Accordingly the appeal is summarily dismissed under the provisions of 8 C.F.R. § 1003.1 (d)(2)G)(E). /s/_ _ Fred Hess FOR THE BOARD F-2 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT } Detroit, Michigan File Nos.: A 79 582 591 A 79 582 592 May 14, 2004 A 79 582 593 In the Matters of ) ) KRIST NIKOLLBIBAJ ) IN ASYLUM DONIKA NIKOLLBIBAJ ) ONLY LINDITA NIKOLLBIBAJ ) PROCEEDINGS Applicants CHARGE: N/A APPLICATIONS: Asylum and withholding of removal. ON BEHALF OF APPLICANTS: David H. Paruch, Esquire ON BEHALF OF DHS: Thomas O. Martin Associate Chief Counsel ORAL DECISION AND ORDERS OF THE IMMIGRATION JUDGE Background The three applicants are ethnic Albanians who are also Catholic. Their background will be addressed in the evidentiary portions of the decision below. They all entered the United States, or were admitted to the united States, with fraudulent Slovenian passports at New York City on December 30, 1998. They were also placed into this asylum only hearing with the publication and concomitant service of a referral to the Immigration Judge. The referral notices have been marked as Exhibits 1, 1-A and 1-B, respectively, in the order in which they appear in the heading of this decision, above. They were placed into this asylum only proceediffg because they were visa waiver pilot program participants, and they were placed in these proceedings after the filing of an asylum application. The asylum application in question is Exhibit 2. It reflects that applicant initially attempted to file his application exactly one year after his arrival, and is the lead applicant, Krist, and that was on December 30, 1999. It was unsuccessful. The record apparently was returned to applicant or applicant’s G-2 counsel. It was re-returned to the Service on January 6, 2000, and apparently again was returned, and ultimately was not filed until September 17, 2001. Before this Court, the lead applicant is seeking asylum and withholding of removal: asylum, pursuant to Section 208 of the Act; withholding, pursuant to Section 241(b) (3) of the Act; and, third and lastly, withholding pursuant to the United Nations Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, Torture Convention), pursuant to 8 C.F.R. 1208.16. of course, this application includes all of the named applicants as a spouse or child of an applicant who has been granted asylum may, if not otherwise eligible, be granted the same status as the principal alien. Now, inasmuch as this application primarily focuses upon the male adult applicant, this decision will primarily focus upon him with references to other family members as well as his wife and child where necessary and/or appropriate. | Applicant, with the assistance of his current counsel, filed a supplementary application for asylum with the Court. This is at Exhibit No.3. After this had been filed with the Court, applicant appeared before the Court, was fully apprised of the G-3 consequences of knowingly filing a_ frivolous application for asylum, made many changes to the asylum application supplement as found at Exhibit No.3, and then signed his application under oath, and then the hearing on the merits commenced. Firm Resettlement It is the Government’s position that the lead s applicant is ineligible to apply for asylum, as he had been firmly resettled in Austria. An applicant cannot apply for asylum if he “was firmly resettled in another country prior to arriving in the United States.” INA Section 208 (b) (2)(A)(v1). Applicant would be firmly resettled if prior to arrival in the United States, he entered another country, with or while in that country received an offer of permanent resident status, citizenship or other type of permanent settlement. 8 C.F.R. 1208.15. Ali v. Reno, 237 F.3d 591 (6" Cir. 2001). Once the issue of firm resettlement has been raised, applicant has the burden of demonstrating he has not been resettled. See, for example, Abdalla v. INS, 43 F.3d 1397, 1400 (10 Cir. 1994); see also 8 C.F-.R. 1240.8(d). The Court notes that in applicant’s initial asylum application that was filed administratively, albeit somewhat late, with the assistance of Mr. G-4 Paruch, applicant said that he had applied for asylum in Austria, and in his testimony at least said that they had lived in Austria five or six years along with many other asylees. In an application filed at Exhibit No.2, applicant swore to or said that they left while this application was pending. At the application as found at Exhibit No.3, the applicant deleted the reference to the application being pending; but he did not give the Court the outcome of the application. So, the negative implication was, is that they left before it was adjudicated. The Court notes that one of the matters that applicant clarified was in that same paragraph that talked about filing the application and not listing an outcome. The word surreptitiously was deleted. So, applicant's attention had _ been specifically drawn to that area of that application, and he elected not to make it more specific. In applicant’s testimony, he said that not only did they apply for asylum, but the asylum was denied them and that’s when they came on to the United States. Applicant also averred that he got a statement, or a document or a letter, reflecting that the application had been denied. He also indicated that he had gotten an ID card from the Austrian government, and yet he left all of those documents in Austria. The Court finds that applicant’s vacillating story with respect to getting asylum or not getting asylum or h ving it denied in Austria raised the possibility that applicant had become permanently resettled in Austria; and as applicant has not demonstrated he was not firmly resettled - the Court notes that applicant hasn’t proven much of anything, given the completely changing nature of his testimony - the Court is obligated to find that he has not met his burden of proof. And, accordingly he is not eligible to apply for asylum because of this firm resettlement issue. Nevertheless, the Court will assume, arguendo, that applicant is eligible to apply for asylum and will reject the application on two other bases. The Timeliness of Applicant’s Asylum Application An asylum application must be filed within one year of the applicant's last entry or arrival in the United States. See INA Section 208(a) (2). For the purposes of Section 208(a) (2) of the INA, the applicant has the burden of proving either by clear and convincing evidence that his application has been filed within one year of the date of alien’s G-6 last arrival in the United States, or to the satisfaction of the Immigration Judge that he qualifies for an exception to the one-year requirement. As mentioned in the background section, this application was originally attempted to be filed on the last possible date. The Court notes that this was date-stamped in the INS Service Center exactly one year and one day after the applicant arrived in the United States. Obviously it was mailed prior to that time. When one can prove a mailing, which the Court is convinced here, it would be deemed filed the date it was mailed. Unfortunately, the applicant’s application was returned to him and was ultimately not filed until September 17, 2001, after again rejection on January 6, 2000. The Court notes that what applicant said in Exhibit No. 3 was, is that he did file within one year, but explained why it was late. This Court reads this as basically a confession that it was filed belatedly. In any event, whether or not applicant concedes that or not, the Court still must address whether the ultimate filing on September 17, 2001 is a timely filing; 1.e., whether he qualifies for any of the exceptions. In the statute and in the implementing regulation promulgated by the Attorney General pursuant to the powers delegated to him by Congress, there are two series of exceptions. One is called changed circumstances, something that is not appropriate here. The other line of exceptions is extraordinary circumstances. Now, the Attorney General in his implementing regulation, 8 C.F-.R. 1208.4, talks about extraordinary circumstances. He says that extraordinary circumstances shal! refer to events or factors directly relating to the failure to file within the one year. Such circumstances may excuse the failure to file as long as the alien filed the application within a reasonable period given those ‘circumstances. The burden of proof is on the applicant to establish to the satisfaction of the Immigration Judge that the circumstances were not intentionally created by the alien through his or her action or inaction, that those circumstances were directly related to the alien’s failure to file the action within the one-year period, and that the delay was reasonable under all the circumstances. Now, then the regulation also talks about a series of exceptions that might flow, but they are not all inclusive. One of them, of course, would be ineffective assistance of counsel. Applicant has never G-8 made that allegation, nor has he attempted to comply with the affidavit portions of the regulation to raise that issue. The Court notes that in this particular case, the only explanation given in Exhibit No. 3 is the fact that they were required to submit additional copies. The Court notes that for some reason those additional copies, or whatever the defect was, was not cured until September 17, 2001. Thus, while the applicant initially filed the application or attempted to file, the Court should say, the application at the one-year deadline, and a delay until January 6, 2001 would have been eminently reasonable, the subsequent delay of one and three-quarters years, which is totally unexplained, is per se unreasonable. The Court notes that one is supposed to file the application within one year of arrival, or entry, and the applicant did not file it until one and three- quarters years after it was rejected for the second time. And, accordingly, the Court finds that applicant has not demonstrated his delay was reasonable, and accordingly the application will be denied as untimely as well. The Court will, however, for the rest of this decision, assume, arguendo, the applicant has proffered an asylum application in a timely fashion, G-9 and the Court will also reject -the application on its merits. The Applicant’s Claims The applicant's claims for asylum and withholding of removal pursuant to the statute and treaty are identical. Unfortunately for the applicant, they have changed over a period of time, and they include in fact matters not specifically listed even in his asylum application. ‘he bottom line is applicant cannot tell a consistent or a straight story. The Court will only note that, inter alia, those factors ultimately relied upon are that applicant has been in the United states for a period of time; that he was a member of a political organization; he might not have served with the military wing of another political organization; that he was Catholic and he did not fight against the Serbs. Asylum and Withholding of Removal Evidentiary Standards An applicant for asylum o. withholding of removal bears the evidentiary burdens of proof and persuasion. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985, modified, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). An applicant for asylum must demonstrate that he is a refugee within the meaning of Section G-10 101 (a) (42) of the INA. This requires him to show that he is unwilling or unable to return to his country of nationality because of past persecution, coupled with either a showing of the likelihood of present or future persecution or for humanitarian reasons as a matter of discretion, or because he has a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. See Mogharrabi, supra. See also 8 C.F.R. 1208.13. On the other hand, an applicant for withholding of removal pursuant to the statute must demonstrate a clear probability of persecution on account of the statutorily enumerated grounds listed above. INS v. Stevic, 467 U.S. 407 (1984). In Stevic the Supreme Court held that the terms well-founded fear and clear probability are significantly different, and the burden of proof required to establish eligibility for asylum is lower than that required for withholding of removal. The Supreme Court has also held in LNS v. Cardoza-Fonseca, 480 U.S. 421 (1987), that the terms well-founded fear and clear probability § are significantly different and that the burden of proof required to establish eligibility for asylum is lower than that required for withholding of removal. G-11 The Attorney General has codified regulations with respect to those seeking asylum. The asylum regulation is codified at 8 C.F_R. 1208.13. lt provides, in part, that if an applicant has demonstrated that he has suffered past persecution, it shall be presumed that he has a well-founded fear of future persecution on the basis of his original claim. This is a rebuttable presumption, and may be_ rebutted by the Government demonstrating by a preponderance of the evidence either a fundamental change in circumstance such that the applicant no longer has a well-founded fear of persecution in applicant’s country of nationality based upon one or more of the five statutorily enumerated grounds, or the applicant could avoid future persecution by locating to a part of the country where under all the circumstances it would be reasonable to expect the applicant to so do. With respect to this regulatory proviso, the Court first notes that. apphcant is not credible. He has not demonstrated anything other than he comes from Kosovo, and he is ethnically Albanian. The Court: notes that he has not demonstrated that has suffered or his family has suffered, as what he claims; that even if-he has suffered what he claims happened to him, it does not rise to the level of past persecution. But even if it did, there has been a G-12 fundamental change. Dr. Fischer’s testimony notwithstanding, such that applicant no longer would have a well-founded fear of future persecution if he were to return to Kosovo. Now, the Attorney General has also noted that there are other ways other than the rebuttable presumption proviso to show that applicant might have a well-founded fear of future persecution objectively and subjectively; and the Attorney General has further said in the same regulation that in evaluating wether the applicant has sustained his burden, the Immigration Judge shall not require the applicant to provide evidence that there is a reasonable possibility he would be singled out individually for persecution if he establishes that there is a pattern or practice of persecution of a group of persons similarly situated to him on account of race, religion, nationality, membership in a particular social group, and he establishes his own inclusion in identification which such of persons such that his fear of persecution upon his return is reasonable. The Court notes that, of course, the applicant has not demonstrated he is a member of any such group. Again, in the Court’s view, all he has demonstrated is that he is an ethnic Albanian from G-13 Kosovo. In any event, even if one were to assume arguendo, all of the things that he tries to pigeonhole himself in, he has not demonstrated there is a pattern or practice of persecution of a group of persons similarly situated to him. Thus, he fails in this burden as well. The Attorney General has promulgated a similar regulation with respect to those seeking withholding pursuant to the statute. It is codified at 8 C.F.R. 1208.16. It also provides in part that if an applicant has demonstrated he has suffered past persecution, it shall be presumed that his life or freedom would be threatened in the future upon his return to his home country on the basis of his original claim. Again, this is a rebuttable presumption. It may be rebutted by the Government demonstrating that there has been a fundamental change in circumstance such that the applicant’s life or freedom would not be threatened on account of any of the five grounds, or that the applicant could avoid future threat to his life or freedom by locating to another part of the country where under all the circumstances it would be reasonable to expect the applicant to so do. Of course, what the Court said about this parallel provision in the asylum regulation applies equally here. G-14 Again, this does not end the inquiry, as the applicant still can demonstrate in other fashions it is more likely than not his life or freedom would be threatened in Kosovo. And again the Attorney General has said that in evaluating whether or not applicant has sustained his burden, the Immigration Judge shall not require him to demonstrate that he would be singled out individually for persecution if he establishes that in his country of nationality there is a pattern or practice of persecution of a group of persons similarly situated to him on account of one or more of the five statutorily enumerated grounds, and he establishes his own inclusion in and identification with such group of persons, such that it is more likely than not his life or freedom would be threatened upon return to that country. Again, what the Court said about the similar proviso in the asylum regulation applies equally here. Before turning the Court’s attention to the withholding application pursuant to the Torture Convention, the Court will note that if the Court were in a position to grant the applicant some discretionary asylum relief, the Court would not do so, because the applicant, after doing whatever he did in Austria, whether it be leaving when his application was still pending or it having been G-15 denied, applicant was in the Federal Republic of Germany and elected not to apply for asylum. Applicant was in IIolland and did not apply for asylum. And, furthermore, applicant did not even put in his application that he was in those countries. Why didn’t he? Well, it was not because he was deceitful, of course; it was because I did not apply for asyium in those countries, or words to that effect. Again, the Court will deny his application as a matter of discretion because he should have applied there or any other country that he might have gone through and did not apply. The applicant has also applied for withholding pursuant to the Torture Convention. An applicant for withholding of removal pursuant to the Torture Convention bears the burden of demonstrating it is more likely than not he would be tortured by someone who would be covered by the treaty and the implementing regulations. In assessing whether the applicant has satisfied his burden, the Court must consider all evidence relevant to the possibility of future torture including, but not limited to, evidence of past torture inflicted; evidence that the applicant could relocate to part of the country where he would not likely be tortured; evidence of gross, flagrant, or mass G-16 violations of human rights within the country of removal, and other relevant information about conditions in the country of removal. See, generally, 8 C.P.R. 120B.16(c). Now, the Court is not going to define torture, primarily because the applicant is just an inherently incredible person. Next, of course, the Court’ should parenthetically observe that there is no rebuttable presumption proviso for Torture Convention claims as there as for an asylum claim and as there is for withholding claims. Nevertheless, the applicant has not demonstrated, as he said, let alone been tortured in the past in Kosovo. Credibility and Corroboration Credibility is usually a crucial aspect of most asylum cases. In some instances, in fact, an asylum seeker does not have to have corroborating evidence to win. Mogharrabi, supra. Nonetheless, the provision of credible evidence is not optional, and applicants must satisfy their affirmative duty to corroborate their claim to the degree they can or otherwise reasonably explain their failure to do so. See, for example, Matter of B-B-, Int. Dec. 3367 (BIA 1998); Matter of S-M-J-, 21 I&N Dec. 772 (BIA 1997); G-17 Matter of Dass, 20 I&N Dec. 120 (BIA 1989). See also Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998) . Plus, of course, in the case, sub judice, the “weaker the applicant’s testimony, the greater the need for credible corroborative evidence. See, for example, Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). The rules on corroboration are the same for those seeking asylum and _ those _ requesting withholding under the statute and treaty. Compare 8 C.F.R. 1208.13(a) with 8 C_F.R. 1208.16(b) and 8 C.F.R. 1208.16(c) (2). This cases cries out for corroboration. The Court notes that Mr. Paruch helped the applicant with his first asylum application as found at Exhibit No.2. It contains no discrete incidents with respect to him or his wife. It was then supplemented by this Court at a Master Calendar. No discrete incidents were listed. In fact, it is basically the same application verbatim. Applicant was then given the opportunity at the commencement of today’s merits hearing, a long time in the future. Applicant made several changes, important changes, but he did not list any discrete events. His testimony was almost as ambiguous as his applications, and the corroboration he proffered was on at least one incident fraudulent, G-18 because he presented a statement allegedly from his parents that had two blatant mis-statements, false statements on it; and even though his parents were in a position to corroborate much of his claim, they did not add anything other than the two false statements. Next, applicant called two brothers. These brothers, unfortunately, came to the United States before the applicant had most of his difficulties at least the difficulties that caused him to come to the United States. Even their testimonies raised more concern about applicant’s credibility than the solved in his favor. The bottom line is applicant’s case cries out for corroboration and he has zero, zip, not a credible corroboration. Even the testimony of his wife raises serious concerns about her testimony, not to mention his testimony. Evidence Discussion & Findings The Court will first trace the history of applicant’s asylum applications, intertwining from time to time comments about some of the testimonial evidence. The Court will then go through the documentary evidence of record, talking about current and past country conditions and _ the documentary evidence submitted in court, and G-19 intertwining again from time to time the testimonial evidence. At the conclusion of the discussion of all of these matters, the Court will then turn its attention more directly to the testimony of the five witnesses. As mentioned above, Exhibit No. 2 is the asylum application attempted to be filed on December 30, 1999, January 6, 2000, and then ultimately on September 17, 2001. See page 1 of Exhibit No. 2. Now, this application at page 1 says that applicant last entered the United States on December 31, 1998. Now, the Court notes of course that this same date was listed in the biological information for his wife and his child found at page 3 of Exhibit No.2. This matter was, however, changed to a different date, December 30, 1998, when amending the written version, or preprinted version that was filed with the Court at a Master Calendar on July 30, 2000. In the first application, applicant indicated that he had no status when he came to the United States; in Exhibit No. 3 as originally proffered and sworn to, it says his status was unknown. Both of the applications, Exhibit 2 and 3, say that he is a Roman Catholic. G-20 Next at page 2 of Exhibit No.2, applicant indicates that he went to high school in a discrete location from September of 1985 to June of 1988. Exhibit No.2 modified that, and he further modified that before signing it under oath. What he did not modify with respect to his employment history or residences in either of the applications that call for this, at Exhibit 2, page 2 or Exhibit 3, page 4, was the fact that applicant claimed that he had been in the military for one year immediately after him being in high school. In fact the applicant, when given the opportunity in both applications pursuant to a question, were you ever in a military or paramilitary organization, did not reveal his membership in the army of, apparently, Yugoslavia, for a period of one year. The Court notes that applicant cannot even ultimately keep the dates of his enlistment and service in the army straight, and that will be addressed below. The Court notes that each question asks for an explanation in detail. The applicant proffered no detail about just about anything. No discrete events. In applicant's first application, Exhibit 2, pursuant to the question, Why are you seeking asylum, he said: I was arrested several times, G-21 interrogated several more times for antigovernment activities. Notice it does not say for activities on behalf of the LDK, which he says in this application he was a member of. In any event, he then said that he was accused of being a terrorist with the KLA and of holding weapons for that group. In this testimony, basically he said, They questioned me at the police station after my arrest and during my interrogations about whether I was a member of any organization. They never came out and flat accused him of his, but this is how he explains why in his application they claimed, or someone accused him of being a terrorist. That is perhaps a reasonable explanation, and the Court’s first reaction, that when he said that nobody accused him of that, probably was a little bit misleading. The Court will find that that does not really present an issue, except the applicant never testified about anybody accusing him of holding weapons for the KLA. With respect to this political organization that he claims he was a member of, at page 5 he says: I have been a member of the LDK, as have both of my brothers who are in the United States. It is a political and peaceful organization seeking rights for ethnic Albanians. . G-22 Now, in his testimony, applicant said not only he was a member, but he was the leader of this; he got a promotion when he got his membership for this organization in his home village, and that he had thousands of people that he led. ‘Vell, if he had been a leader, one would think that information would be provided in his application. The Court views this as being a major inconsistency. Now, the Court does note, however, that applicant was informed that Exhibit No. 2 and Exhibit No. 3 was one long continuous application; that if there were differences, the Court would go with the most recent version. Ofcourse, the applicant obviously would have to explain any differences. Nevertheless, in his most recent application he uses the same term, member of the ILLDK, it says. See page 6 of Exhibit No.3. And that was never changed during the initial signing of the application immediately before the taking of the evidence. At page 7, he talks about filing an asylum application in Austria in order to obtain food and shelter: We were briefly interviewed, and with the application “still pending when we came to the United States.” Of course in applicant’s second application, he does not say what happened to it. In G-23 his testimony, he said it was denied. Again, he just cannot keep his story straight. With [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1364%3A1. Public record. Not legal advice.