In the context of a Lozada mtn to reopen for a witness against Albanian human traffickers (where prior atty pushed him to take VD), the CtApp found:
1. Affidavit from atty re conversation with prior counsel - while not ideal under Lozada - was sufficient to put counsel on notice of the claim, and was also sufficient to educate him for the future.
2. Lack of English skills and time pressure were bad reasons not to file ARDC complaint, since new counsel would usually do that. But failure to comply with third prong was not dispositive, so long as policy concerns were met. Here, call alerted prior counsel to his error, and his ignorance of potential legal errors made evidentiary hearing unnecessary; no allegation of collusion.
3. Prejudice was shown, in that there was no benefit to client from being coerced into taking VD - he might have succeeded on a CAT claim, given rampant corruption in Albania.
4. Noted potential application of United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209, which requires that “[e]ach State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention . . . .” Id. at art. 24(1). While CtApp expressed skepticism that state-created danger exception would be appropriate to address convention, remanded to Board to permit it to analyze the matter.
On remand, the BIA should determine how current U.S. law reflects compliance with the specific provisions of the Convention that are relevant to Rranci’s claim. We leave interpretation of this issue to the BIA for consideration in the first instance. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). But the Convention calls into question whether the Government may put Rranci into harm’s way in Albania after using his cooperation to obtain a guilty plea from a significant criminal. The BIA’s consideration of the Convention will factor into the degree to which Rranci may have been prejudiced by his prior counsel’s decision to recommend forgoing a hearing and accepting voluntary departure.
The CtApp found that the Board's decision, while brief, provided enough detail to permit judicial review. It upheld the Board's analysis in finding a lack of a "pattern and practice" of persecution of Indonesian Christians, finding Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) to be based on outdated country conditions docs. Fact that her husband's asylum claim was approved could have been relevant (citing Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006)), but "Wong has not provided any details as to her husband’s claim and we therefore cannot assess its similarity or relevance to her claim." I-730 pendency was irrelevant to the case. CtApp also suggested that Govt's attempts to protect Christians might be relevant to pattern and practice claim.
Interesting, the CtApp cited recent country conditions reports, but did not take judicial notice of them:
FN4 It is important to note that these recent reports are not part of the record and do not therefore control our decision-making. Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”). Although other courts of appeals have taken judicial notice of new country reports released after a final agency determination, see, e.g., Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41 (7th Cir. 2004), we have declined to do so. See Berishaj, 378 F.3d at 330 (explaining that we have followed “the clear command from SEC v. Chenery Corp., 318 U.S. 80 [] (1943), that courts reviewing the determination of an administrative agency must approve or reject the agency’s action purely on the basis of the reasons offered by, and the record compiled before, the agency itself”).
The 3d Cir found that the attempted "question of law" in failing to properly analyze evidence in waiver case was more factual than legal, and found no jurisdiction to consider it under 1252(a)(2)(D).
Petitioner also raised issue of collateral estoppel, because INS had adjudicated adjustment when it knew or should have known of past convictions. CtApp found the issue a question of law, but refused to apply because adjustment interview wasn't an adversarial hearing which could give rise to estoppel. Accord, Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir. 2006). Also, waiver issue wasn't litigated before INS (since crimes weren't disclosed), and fraud prevented full litigation. Accord Pereira-Barbeira v. INS, 523 F.2d 503, 507 n. 3 (2d Cir. 1975) (“The fraud on the basis of which [a petitioner] was granted ... adjustment of status necessarily vitiated any res judicata effect of those proceedings in the current deportation proceedings.”).
The IJ refused to continue the case for I-130 adjudication, based on the case completition goals (I-130 not adjudicated due to investigation of divorce decree). BIA affirmed, finding questions raised as to authenticity of divorce decree.
The 3d cir found the IJ's use of case completition goals was error:
This one-size-fits-all approach runs contrary to our statement in Ponce-Leiva that what “constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis according to the facts and circumstances of each case.” 331 F.3d at 377 (citation omitted) (emphasis added). Case-completion goals are ordinarily implemented as guidelines to promote reasonable uniformity and to help judges schedule and effectively manage their caseloads. As guidelines, they should not be read as an end in themselves but as a means to prompt and fair dispositions, giving due regard to the unique facts and circumstances of the case.
It also disagreed with OIL's argument that Petitioner should have filed a mandamus vs USCIS, and found that BIA's suggestion that the fault for the delay may have been Petitioner's - because of the alleged fraud - was a finding of fact, which the BIA is prohibited from making.
3rd Cir agreed with the IJ and BIA that petitioner from Colombia had not established past persecution on account of a protected ground, but found that petitioner had a well-founded fear of future persecution as a member of a particular social group - women who escaped FARC. The court remanded to the BIA to address whether petitioner could reasonably relocate, and also to address her withholding and CAT claims.
Third Circuit 
