Rranci v. Att'y Gen'l (3d Cir. 8/22/08)

AMBRO Sloviter Restani (Ctoftrade)

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.

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