On Petition for Review of an Order of The Board of Immigration Appeals (BIA Nos. A73 540 510; A73-540 509; A73 540 508).
The opinion of the court was delivered by: Debevoise, Senior District Judge
Submitted Under Third Circuit LAR 34.1(a) January 9, 2006
Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE*fn1, Senior District Court Judge.
Petitioners, Igli Filja, his wife, Luljeta Filja, and his son, Endrit Filja,*fn2 petition for review of a February 23, 2004, decision of the Board of Immigration Appeals (the "BIA" or "Board") denying petitioners' motion to reopen a previous decision of the Board affirming an Immigration Judge's ("IJ") decision denying petitioners' requests for asylum and withholding of deportation. We hold that the BIA misinterpreted the time limitation found in 8 C.F.R. § 1003.2(c)(3)(ii) for motions to reopen due to changed country conditions and that its denial of the motion on other grounds was an abuse of discretion. We will grant the petition and remand the matter to the BIA for further proceedings.
Filja was lawfully admitted to the United States on September 6, 1992. His wife and son were lawfully admitted on November 29, 1993. In 1994, they filed a request for asylum in the United States based on prior persecution and a well-founded fear of future persecution if forced to return to their native country, Albania.
On June 28, 1996, the IJ held a hearing on petitioners' applications for asylum and withholding of deportation. Filja was the only witness, and what follows is a summary of his testimony.
After he completed high school in 1982, Filja, because of his and his family's suspected opposition to the governing Communist Party, was not permitted to obtain higher education. In 1985, through the intervention of a relative of his father, he obtained a job as a printer. The relative was a supporter of the Communist Party. Feeling sorry for Filja (even though Filja was a supporter of democratic principles) the relative used his influence to obtain a position for him at the Party newspaper called Zeri i Popullit - Voice of the People. Filja was relegated to the disfavored night shift and worked six nights a week.
There came a time in 1989 when Filja met with 20 to 25 workers to discuss their low wages, housing, the politics of the government and lies that the government was printing in the newspaper. The next day he and several others who had spoken that night were taken to the secret police. The police informed them "we hope these things will never repeat." On September 5, 1990, Filja again spoke to a group of workers and was again called in for questioning. He was handcuffed for three and one-half hours and was told he was causing a revolution inside the company, which could cause him a lifetime in jail.
Despite the threat, Filja promised to speak to the people again on January 10, 1991, a promise he carried out. Instead of calling him into the police station, the authorities, who held positions in both the printing company and the government, took another tack. On June 21, 1991, they sent him and the three others who spoke at the meetings to Canada, purportedly to receive training upon a high speed, three-color printing machine which the newspaper was purchasing for $200,000 from a Canadian company called New Concepts. When the four men arrived in Canada they found no new machine, and Filja was put to work for ten hours a day as a cleaner and folding newspapers.
In mid-August, 1991, the four were instructed to return to Albania. At that time Filja believed that the Canadian assignment was a ploy to provide cover for the newspaper officers in Albania who, Filja speculated, had absconded with the $200,000 appropriated for the purchase of the press. He also believed that upon the return of the four men to Albania they would be arrested and charged with the theft. The four men refused to return to Albania.
Filja described a political change that took place after his refusal to return from Canada. He and his companions had left for Canada on June 21, 1991. At that time the Socialist Party (which in 1990 became successor to the Communist Party) was in power and owned and controlled the paper. In his original asylum application Filja based his asylum request upon his opposition to the Socialist Party. The Democratic Party, which he supported, was out of power, and its members were under continuing attack by the Socialist Party.
In late 1991, however, several months after Filja refused to return from Canada, the Democratic Party took control of the government, but the police and secret police still contained supporters of the Socialist Party. Although the Democratic Party destroyed the company that owned Zeri i Popullit, it sold the paper to the same people who owned it before - the Socialists.
Filja applied for asylum in Canada, which was denied in 1992. Three months after the denial he obtained a visa and entered the United States on September 6, 1992.
About a month before the IJ hearing there occurred a series of events that caused Filja further concern. His father, who continued to live in Albania, was served with what purported to be a warrant for Filja's arrest on charges of having caused serious damage to the state in the amount of $200,000 by not returning to his duties. The father sent a copy of the warrant to Filja, who received it two weeks before the hearing. This inspired new fears in Filja's mind, namely, that he was being pursued not only by the Socialists but also by the Democratic Party, which, because he had worked for the Socialist Zeri i Popullit, had concluded that he was a Socialist. At the hearing Filja's attorney filed a supplemental statement to reflect this fear, and the IJ admitted a photocopy of the warrant and a translation into evidence.
The IJ's January 16, 1997 opinion set forth the events substantially as Filja testified about them. The IJ stated with respect to the arrest warrant:
This document was submitted by the Service to the embassy in Tirana. In a FAX communication signed by the Honorable Consul Susan Lively, the Document in question turns out to be fraudulent.
Thereupon the IJ concluded that:
Respondent's story never happened at all. I feel that after seeing his date of arrival and his wife and son's, the date when the travel documents were issued, that the respondents planned very carefully their departure from Albania. Respondent's reasons for coming to the USA in my opinion are not related to his political activities, which I find never happened at all, but to personal reasons probably dealing with their wishes to reside and work in the USA.
. . . Respondent's testimony lacks in credibility and it is rejected as incoherent and implausible, short of calling it a total fabrication in an attempt to convince the court to grant this application for asylum.
In accordance with his opinion, the IJ ordered that the applications for asylum and withholding of deportation be denied. On March 7, 1997, the Filjas appealed to the BIA.
In June 1997, the Socialist Party returned to power in Albania. This occurred after the IJ's January 1997 opinion and well before the decision of the BIA on the Filjas' appeal.
In a March 19, 2002 opinion the BIA rejected the IJ's credibility determination. It held that the fact that the arrest warrant may have been fraudulent did not provide a basis for a finding that Filja's testimony was incredible, because the consul's FAX was submitted after the close of the hearing; it had not been admitted into evidence; and there was no indication that the IJ provided Filja with an opportunity to rebut it.*fn3 Further, the BIA found the IJ's comments about Filja's motivation for coming to the United States were speculative in nature and did not support a finding of incredibility. Consequently, it did not affirm the IJ's adverse credibility finding.
Nevertheless, the BIA concluded that Filja's experiences in Albania did not rise to the level of persecution. Addressing Filja's assertion that he was being framed by his former employer by a charge of theft of $200,000, the BIA found that:
even assuming the validity of [the arrest warrant] which the respondent himself placed into evidence, on its face the document does not squarely corroborate his claim of being accused of misappropriating or stealing $200,000 in company funds. To the extent the respondent may be subject to punishment for not returning to work at his former place of employment, resulting in financial loss to the company, it has not been persuasively established that any such action taken against him would be imposed on account of a ground protected by the Immigration and Nationality Act.
The BIA determined that the Filjas had failed to establish past persecution or a well-founded fear or clear probability of persecution in Albania based on race, religion, nationality, membership in a particular social group, or political opinion, actual or imputed. It dismissed the appeal.
On October 9, 2003, the Filjas moved before the BIA to reopen the proceedings on the grounds that there had been changed conditions in Albania, and that Filja was deprived of his due process rights as a consequence of his former counsel's ineffective assistance. He also sought protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"). In support of the motion Filja submitted a greater than 300 page record consisting of Filja's and his wife's affidavits; documents evidencing past persecution of Filja's family by the Communists-Socialists; affidavits of persons having personal knowledge of the family's past persecution, Filja's activities on behalf of the Democratic Party, and Filja's assignment to the Canadian printing press project; and eight reports of the State Department, Human Rights Watch, and Amnesty International describing continuing persecution by the Albanian police and secret police of those supporting the principles of the Democratic Party. The record contains evidence supporting Filja's contention that because of the ineffectiveness of his attorney his case was not fully presented at his June 28, 1996 hearing before the IJ.
The changed condition upon which Filja based his motion was the June 1997 return to power of the Socialist Party. Filja relied on the record he submitted to support the significance of that event and the effect it would have upon him and his family.
In his own affidavit Filja describes the treatment his family suffered at the hands of the Communist regime after it came to power when Albania was liberated in 1944. Previously they had been prosperous. His maternal grandfather had been a First Captain of the King Zog regime. The Communists seized their property, executed a number of the family members, interned some and deported others from their homes to work camps. Two relatives escaped to the United States and have been granted asylum. In his affidavit, Filja describes his family's and his own participation in the Democratic Party, formed to oppose the Communist Party's successor, the Socialist Party. He participated in toppling the statue of dictator Enver Hoxha on June 10, 1991, and ten days later left the country for Canada on the mission to purchase the printing press for the Socialist Party paper, Zeri i Popullit. He informed a leader of the Democratic Party of the project before leaving for Canada, and once in Canada decided to remain. Prior ...