Fadiga v. Attorney General U.S.

• Citation: 488 F.3d 142
• Decision Date: 15 June 2007
• Docket Number: No. 05-4910.,05-4910.
• Parties: Soriba FADIGA, Petitioner v. ATTORNEY GENERAL USA, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

488 F.3d 142

Soriba FADIGA, Petitioner v. ATTORNEY GENERAL USA, Respondent.

No. 05-4910.

United States Court of Appeals, Third Circuit.

Argued November 27, 2006.

Filed: June 15, 2007.

Daniel G. Anna, Esquire (argued), Anna & Anna, P.C., Media, PA, Counsel for Petitioner.

Patrick L. Meehan, Esquire, United States Attorney, Robert A. Zauzmer, Esquire, Assistant United States Attorney, Chief of Appeals, Emily McKillip, Esquire (argued), Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, Richard M. Evans, Esquire, Nancy E. Friedman, Esquire, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Counsel for Respondent.

Before: FUENTES and GARTH, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

POLLAK, District Judge.

On May 7, 2004, an Immigration Judge (IJ) ordered that Soriba Fadiga be removed to Guinea. Fadiga moved to reopen the removal proceedings, Fadiga's counsel acknowledging that he had provided ineffective assistance in presenting Fadiga's application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT). Before the IJ could rule on the motion to reopen, new counsel appealed the order of removal to the Board of Immigration Appeals (BIA). The BIA considered the motion to reopen filed in the Immigration Court as a motion to remand and denied the appeal and the motion, concluding in part that Fadiga had not shown "prima facie eligibility for either withholding of removal under section 241(b)(3) of the [INA] or protection pursuant to the Convention against Torture," and that "as a result . . . [Fadiga] has [not] demonstrated that he has been prejudiced by the actions of his former attorney." E.R.¹ at 5 (BIA Dec.). In support of its conclusion, the Board found "with regard to [Fadiga's] application for withholding of removal under [the INA] . . . the record fails to establish that it is `more likely than not' that he would be in danger of future persecution." Id. The Board also found "that [Fadiga] has failed to demonstrate his eligibility under the Convention Against Torture," because "the record is devoid of any evidence that [Fadiga] has ever been tortured in the past, [and] there is also is [sic] insufficient evidence to demonstrate a clear probability that he would be subject to future torture in Guinea." Id.

Fadiga now petitions this court for review of the BIA's final order of removal as to his claims for withholding under the INA and protection under the CAT.² Upon examination of the BIA's decision and order, we conclude that the Board abused its discretion in denying Fadiga's motion to reopen/remand. Therefore, for the reasons stated below, we will grant the petition, vacate the decision and order of the BIA, and remand to the agency with directions to reopen Fadiga's case. In addition, we take this opportunity to clarify the analytical framework for claims of ineffective assistance of counsel in removal proceedings.

I. BACKGROUND

In reviewing Fadiga's underlying claim of ineffective assistance of counsel, the details of the proceedings before the IJ—specifically, the hearing on Fadiga's application for asylum, or in the alternative withholding of removal, or in the alternative protection under the CAT³ [hereinafter "application for asylum" or "application"]—are of primary concern. Therefore, in this section of the opinion, we (1) summarize the procedural history of the case, (2) describe in some detail the evidence and arguments presented to the Immigration Court and the IJ's oral decision, and (3) outline the supplementary evidence sought to be submitted to the BIA and the BIA's decision affirming the denial of Fadiga's application for asylum and denying Fadiga's motion to reopen/remand.

A. Procedural History

Soriba Fadiga entered the United States on April 21, 1991 on a non-immigrant visa that expired May 31, 1991. On September 10, 2002, the INS issued and served on Fadiga a Notice to Appear alleging that he was a non-immigrant who had overstayed his visa. Fadiga conceded removability on this ground, but filed an application for asylum under section 208 of the INA, 8 U.S.C. § 1158, withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and protection under Article III of the CAT.⁴ See supra note 3. A hearing on this application—denominated a Form I-589—was held on May 7, 2004. At the conclusion of the hearing, the IJ issued an oral decision denying the request for asylum as time-barred, denying the requests for withholding of removal under the INA and protection under the CAT on the merits, and ordering Fadiga removed to Guinea.

On May 26, 2004, through his original counsel, Daniel Pell, Fadiga filed a motion in the Immigration Court seeking to reopen the removal proceedings. But on June 4, 2004, Fadiga—now represented by new counsel, Ryan Osborne—filed a notice of appeal with the BIA. As authorized by 8 C.F.R. § 1003.2(c)(4), the BIA then took jurisdiction over both the appeal and the motion to reopen, considering the latter as a motion to remand. The sole ground of the appeal and of the motion to reopen was the alleged ineffective assistance provided by Pell. On October 6, 2005, a single member of the BIA filed a three-page decision and order dismissing Fadiga's appeal and denying the motion to reopen/remand.⁵

B. Proceedings before the Immigration Court

1. Substantive evidence presented

At the merits hearing on May 7, 2004, Fadiga submitted evidence in the form of his own testimony, as well as several exhibits. Fadiga's testimony presented, in relevant part, the following set of facts:

Soriba Fadiga, who was 44 years old at the time of the 2004 hearing, is a native and citizen of Guinea, a Muslim, and an ethnic Mandingo. He claimed to have been to be a close relative of Sékou Touré, the first president of independent Guinea, who held that office from 1958 until his death in 1984. From at least the early 1980s, Fadiga was active in Sékou Touré's political party, the PDG,⁶ serving as a regional secretary of youth. Shortly after Sékou Touré died, a coup ousted the PDG from power and installed a new president, Lansana Conté. Whereas Sékou Touré, like Fadiga, had been of Mandingo or Malinké ethnicity, Lansana Conté was an ethnic Soussou.

At the May 7, 2004 hearing, Fadiga was, according to the IJ, "quite animated about [political] problems that his family had" after the PDG lost power, including the politically motivated murder of at least one relative, Fadiga's uncle Ismail Touré. E.R. at 21 (Oral Dec. of IJ). Fadiga testified that, as a result of these problems, his father left Guinea for Côte d'Ivoire in or around 1986. As to his own political problems, Fadiga further testified that he had been a founding member of a post-coup, opposition party—the RPG, led by Alpha Condé—and that, after "problems associated with the 1990 elections," he too was at risk. Id. at 20-21. For this reason, in early 1991, Fadiga also fled to Côte d'Ivoire. Soon after Fadiga's departure, an arrest warrant was issued for him by the Guinean government, apparently on a charge of "public disorder." See A.R. 403 (purported arrest warrant stating charge as "pour désordre publique"). From Côte d'Ivoire, Fadiga was able to pay money to procure a fraudulent Guinean passport and United States visa. He traveled to the United States from Côte d'Ivoire in April 1991. Fadiga continued to be "actively involved" with the RPG party in the United States, through his involvement in the expatriate Guinean community, and he has participated in demonstrations here against President Conté. E.R. at 22-23 (Oral Dec. of IJ).

Fadiga asserted at the May 7, 2004 hearing that he "fear[ed] being arrested, tortured, or killed" if he were to return to Guinea and that he was "100% sure" that he would be arrested at the airport and taken to prison. Id. at 18 (IJ's summary of Fadiga's testimony). He cited his Mandingo tribal roots, his family's political affiliation, his former position as a youth leader of an opposing political party (the PDG), his subsequent RPG membership, and his continuing protest activity while in the United States as factors which would cause him to be targeted by the Conté regime.

The evidence offered by Fadiga in support of the above testimony included, in relevant part, six documents from governmental and non-governmental agencies and the media regarding human rights abuses in Guinea, and three additional documents offered to corroborate Fadiga's version of the facts. The corroborating documents were (1) a purported original Guinean arrest warrant issued against Fadiga on January 5, 1991; (2) a document dated January 3, 1993, purportedly showing Fadiga to be a member of the "RPG" political party; and (3) a second document verifying Fadiga's affiliation with the RPG as of October 15, 2003.⁷

2. Discrepancies in the evidence

The IJ found "dramatic inconsistencies" between Fadiga's testimony and his application for asylum. E.R. at 34; see also id. at 23 (noting "glaring discrepancies between [Fadiga's] application for asylum and his testimony in court"). However, Fadiga claimed before the IJ, and continues to claim, that these discrepancies resulted not from mendacity or inconsistencies in his memory, but from errors made by counsel. The discrepancies at issue relate to at least the following matters:

• Education The IJ found the testimony as to Fadiga's early education "somewhat confusing" and noted significant discrepancies in the dates of attendance and the names of schools between the application for asylum and Fadiga's testimony at the hearing. E.R. at 19, 24; Respt.'s Br. 8 n. 3. As discussed below, Fadiga attributed the inconsistency to attorney error in filling out the asylum application. He also claimed that the "Gamal Abdel Nasser University" referred to in his testimony was merely another name for...