Piranej v. Mukasey

• Decision Date: 15 February 2008
• Docket Number: No. 04-0309-ag.,04-0309-ag.
• Citation: 516 F.3d 137
• Parties: Artur PIRANEJ, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

516 F.3d 137

Artur PIRANEJ, Petitioner, v. Michael B. MUKASEY,¹ Respondent.

No. 04-0309-ag.

United States Court of Appeals, Second Circuit.

Submitted: September 6, 2007.

Decided: February 15, 2008.

Visuvanathan Rudrakumaran, Law Office of V. Rudrakumaran, New York, N.Y., for Petitioner.

Hillel R. Smith, Trial Attorney, Office of Immigration Litigation (Peter D. Keisler, Assistant Attorney General, Greg D. Mack, Senior Litigation Counsel, on the brief), Washington, DC, for Respondent.

Before: WALKER, CALABRESI, and SACK, Circuit Judges.

CALABRESI, Circuit Judge:

Petitioner Artur Piranej ("Piranej" or "Petitioner") alleges that but for the ineffective assistance of his counsel, he would have been able to adjust his status to that of a lawful permanent resident and thus avoid deportation. Based on that claim, he filed a motion before the Board of Immigration Appeals ("BIA") to reopen his removal proceedings. The BIA denied the motion, finding that Piranej had failed to meet certain of the pleading requirements set out in In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988)—specifically that of alleging in detail the agreement he had with counsel and how that agreement was violated.

Piranej's affidavits and submitted materials before-the BIA, however, can be read to assert that he and his counsel were in a relationship similar to that of a general retainer agreement, and that, due to the nature of this relationship, the lawyer should have provided Piranej with timely advice about new opportunities for adjustment of status. Because the prospect of a "general retainer agreement" is not one which the language of Lozada contemplates, we find that the BIA abused its discretion in rejecting Petitioner's ineffective assistance of counsel claim without a more thorough factual examination and, if such an examination warranted it, a consideration of the meaning and applicability of the Lozada requirements in the context of general retainer agreements.

We therefore remand this case to the BIA with instructions to remand it to an Immigration Judge ("IJ") for fact-finding on the exact parameters of the relationship between Piranej and his lawyer. The IJ and BIA should then determine, in the first instance, whether the understanding between Piranej and his lawyer serves the functions embodied in Lozada's "agreement" requirement, and whether, in light of that determination, Piranej's allegations have substantially complied with this requirement.

BACKGROUND

I. Underlying Events

Artur Piranej, a citizen of Albania, entered the United States on or about July 31, 1998. In August of that year, Piranej, with the assistance of James Hakanjan, a member of an "immigration service," who was "familiar with how these applications are filled out," attempted to file an asylum claim. The application was apparently improperly filled out and, on this basis, was denied. On September 30, 1998, Piranej was served with a Notice to' Appear. As an alien inadmissible due to invalid entry documentation, he was charged with removability. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

At that point, Piranej hired James Lombardi as his lawyer. At a hearing before an IJ in December of that year, Piranej, with counsel present,² conceded his removability and sought political asylum and withholding of removal. On March 9, 1999, his petitions for relief were denied by the. IJ, and he was ordered removed. Lombardi, on behalf of Piranej, filed a timely appeal to the BIA, which affirmed the IJ's decision without opinion on February 13, 2003. In re Piranej, No. A76 085 301 (B.I.A. Feb. 13, 2003), affg No. A76 085 301 (Immig. Ct. N.Y. City Mar. 9, 1999). The BIA's decision was not appealed to this Court.

II. Motion To Reopen Before the BIA

In May 2003, Piranej, represented by new counsel, filed a motion to reopen his deportation hearings on the ground that he received ineffective assistance of counsel. He argued that but for Lombardi's negligence, Piranej would have been able to adjust his status to that of a permanent resident and thus avoid deportation. In submitting his motion to the Board, Piranej provided an affidavit alleging prejudice due to Lombardi's ineffective assistance and outlining aspects of their attorney-client relationship. Piranej also submitted the complaint that he had filed with the Departmental Disciplinary Committee, as well as evidence that Lombardi had been informed of the allegations against him and been given an opportunity to respond.

A. The Alleged Ineffective Assistance of Counsel

Shortly after arriving in the United States, in the autumn of 1998, Piranej met Bukurije Neza. At Piranej's asylum hearing on March 9; 1999, Neza, a U.S. citizen, was identified as Artur Piranej's fiancee. After the hearing, Piranej told his lawyer, Lombardi, that he and Neza wanted to get married. Lombardi allegedly advised them not to do so, saying "it would hurt their case."³

In early 1999, the availability of adjustment of status based on a marriage to an American citizen was limited by 8 U.S.C. § 1154(g), which states that "a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period [in which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States], until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage." A waiver, provided in Immigration and Nationality Act ("INA") section 245(i), 8 U.S.C. § 1255(i), allowing certain aliens to remain in the United States while adjusting their status, had expired in January 1998.⁴

Piranej and Neza still wanted to get married, "regardless of the outcome of [the] case." And to this end, in February 2001, Neza called Lombardi "Rio be on the safe side." She left a message with someone, identified by Neza as a secretary, that Neza needed to talk with Lombardi, as she and Piranej were planning on getting married soon. Lombardi did not return the phone call, and Neza and Piranej assumed from this silence that it would be "all right for [them] to get married." On March 20, Piranej and Neza were married. Following the wedding, Neza again called Lombardi's office and spoke to an unidentified woman who answered the phone. Neza told this woman that she and Piranej were now married and that she "would like to talk to Mr. Lombardi and ask him what [they] should do next." Again, Lombardi did not return Neza's call.

In July 2002, after "having called Mr. Lombardi's office many more times and receiv[ing] no response from him," Artur Piranej went to the office, without an appointment, and asked to see Lombardi. He met with Lombardi and announced his intention to find another attorney to take action on his case, stating that on March 20, 2001, he had married a U.S. citizen. Lombardi allegedly replied, "Oh my God! If you were here before April 30, 2001, you would be talking now with me with your green card in your pocket." were the beneficiaries of visa petitions filed by April 30, 2001.⁵ Lombardi advised Piranej to have Neza file, as soon as possible, an I-130 petition for permanent residence of an alien spouse. Lombardi assisted with this filing, which was submitted on August 9, 2002, almost sixteen months after the statutory deadline. In January 2003, the Piranejs had a son, Brian, and on April 14, 2003, roughly two months after Piranej's removability had been upheld by the BIA, the INS approved Neza's I-130 petition.

B. The BIA's Decision

The BIA, with one Board Member dissenting, denied Piranej's motion to reopen on December 17, 2003. In re Piranej, No. A76 085 301 (B.I.A. Dec. 17, 2003). It first noted that the 1-130 petition, filed by Neza on Piranej's behalf, was not filed until August 9, 2002, and that neither the statute, INA section 245(i), 8 U.S.C. § 1255(i), nor its implementing regulation, 8 C.F.R. § 1245. 10, provided for an exception to the April 30, 2001 filing deadline. On that basis, the BIA denied Piranej's petition to reopen; since Piranej was not the beneficiary of a timely filed petition for an immigrant visa, he was "statutorily ineligible" for adjustment of status under section 245(i), hence reopening was not warranted.

The BIA did not address, however, whether the statute allowed for any equitable measures to toll the deadline. Instead, it stated that "[e]ven if section 245(i) of the Act was interpreted to include ineffective assistance of counsel as an exception to the April 30, 2001 filing deadline," Piranej had not met the requirements under Lozada. The Board reasoned that Piranej's required affidavit "fail[ed] to set forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representation counsel did or did not make to the respondent. The affidavit merely recounted] what his counsel failed to do, but [did] not mention what actions his counsel promised to undertake."

The dissenting Board Member, Lauri Steven Filppu, disagreed with this analysis. She instead determined (a) that Piranej had, in fact, complied with the Lozada requirements, and (b) that, in light of this Court's decision in Rabiu v. INS, 41 F.3d 879 (2d Cir.1994), "attorney error should permit [Piranej] to obtain the benefits of section 245(i) ..., even though the necessary filings are untimely under that statute." The dissent would have remanded the case to the IJ to resolve factual disputes regarding whether attorney negligence had actually occurred and, if Piranej prevailed on the facts, would have ordered the IJ to reopen proceedings.

Piranej timely filed a petition for review before this Court. He contends that, in the circumstances of his case, the BIA abused its discretion in its application of the Lozada requirements.

DISCUSSION

We review the BIA's denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005...