Aliaj v. Mukasey, 121807 FED6, 06-4399

Docket Nº:06-4399
Party Name:PAULIN ALIAJ and VJOLLCA ALIAJ, Petitioners-Appellants, v. MICHAEL B. MUKASEY, Attorney General of the United States, Respondent-Appellee.
Case Date:December 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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PAULIN ALIAJ and VJOLLCA ALIAJ, Petitioners-Appellants,

v.

MICHAEL B. MUKASEY, Attorney General of the United States, Respondent-Appellee.

No. 06-4399

United States Court of Appeals, Sixth Circuit

December 18, 2007

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

Before: GUY, MOORE, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Paulin and Vjollca Aliaj, a married couple who are both citizens of Albania, were granted voluntary departure for a period of 90 days after withdrawing their applications for asylum. Claiming that they had received ineffective representation from their privately retained counsel during the removal hearing, the Aliajs then filed a timely motion to reopen the administrative proceedings. The immigration judge (IJ) denied the motion.

After several procedural issues were resolved, the Board of Immigration Appeals (BIA) affirmed the denial of the motion to reopen and dismissed the Aliajs' appeal. The Aliajs now claim that the ineffective assistance of their counsel was so prejudicial that they were denied their Fifth Amendment right to the due process of law. For the reasons set forth below, we AFFIRM the judgment of the BIA.

I. BACKGROUND

A. Factual background

The Aliajs separately and illegally entered the United States using fake passports. Paulin first submitted an application for asylum in July of 2001. The application showed that he had entered the United States in May of 1997, but there is no evidence in the record to support such an entry date. Attached to this application was a lengthy declaration detailing alleged beatings, detentions, arrests, and threats suffered by Paulin at the hands of the former Communist regime. Paulin was interviewed by asylum officers in February of 2002, at which point he contradicted a number of the statements contained in his original asylum application, including where and when he had entered the United States. During that interview, Paulin discussed a meeting that he had had with the attorney who had filed his application for asylum. He disclosed to the officers that he had originally signed a blank application, and that he had subsequently demanded that the attorney withdraw that application because "[n]othing other than my name was true."

In June of 2002, Paulin submitted a second application for asylum. That application, which was prepared with the assistance of a different attorney, states that he had entered the United States in September of 2000. He claimed that he had been threatened by a group of men whose leader was the former regional police chief, a person who had been relieved of his duties when the Communist regime fell from power. Paulin asserted that the men had repeatedly threatened and beaten him after he informed the authorities that he had heard the group discussing the smuggling of oil and weapons into Yugoslavia. He claimed that because many members of this group were later arrested, their colleagues would seek retribution against Paulin if he were to return to Albania. In his second application for asylum, Paulin supplied specific information about his departure from Albania and entry into the United States. The details that he provided in this application contradicted those he had given in his February 2002 asylum interview.

Paulin's wife Vjollca entered the United States in May of 1997. She originally claimed derivative status on her husband's application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Eventually, however, she submitted her own application. In that application, Vjollca claimed that "[her] family has been one of the most persecuted families in Northern Albania," and that she feared that she would be "beaten, and imprisoned or even killed for [her] political activities" if she were to return to Albania. She reported that because of her activities with the Youth Forum of the Democratic Party, she had twice been beaten by members of the Socialist Party while recruiting people for the Youth Forum. Vjollca also asserted that these people had threatened to rape and kill her, and harm her entire family, if she continued to work for the Democratic Party. According to Vjollca and a corroborating letter from a doctor in Albania, she received medical attention after both of the attacks. The doctor's letter states that Vjollca was twice treated for a "hemorrhage of the nose and teeth . . ., black marks on the face and different parts of the body, and hematoma."

B. Procedural background

In June of 2002, the Aliajs were served with a Notice to Appear (NTA) and placed in removal proceedings pursuant to the Immigration and Nationality Act § 212(a)(6)(A)(i). The couple appeared before an IJ in August of 2002. During this hearing, the Aliajs, through new counsel, admitted the allegations contained in the NTA. The Aliajs were provided with an interpreter fluent in their native language at this hearing and at all future merits hearings. In August of 2004, they appeared for a merits hearing on their application for asylum. The IJ and the Aliajs' attorney at the time agreed that because of the falsity of Paulin's original application, he had not submitted a valid request for asylum within a year of entry and would therefore be limited to an application for withholding of removal. Furthermore, because Vjollca could no longer obtain derivative status from Paulin's application, the IJ requested Vjollca to file one of her own. The hearing was then continued. Vjollca subsequently filed a separate application in...

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