Besnik Rukiqi v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3979
BESNIK RUKIQI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES;
DEPARTMENT OF HOMELAND SECURITY,
Respondents
Petition for Review of an Order
of the Board of Immigration Appeals
No. A79-330-965
Immigration Judge: Eugene Pugliese
Argued May 10, 2007
Before: RENDELL, JORDAN and ALDISERT, Circuit Judges.
(Filed: August 31, 2007)
__________________
* Honorable Ruggero J. Aldisert, Senior Judge of the United States Court of Appeals
for the Third Circuit, appeared via audio conference.

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2
David E. Oltarsh
Jennifer M. Oltarsh (Argued)
Oltarsh & Associates, P.C.
494 Eighth Ave., Suite 1704
New York, NY 10001
Counsel for Petitioner
Douglas E. Ginsburg
John D. Williams (Argued)
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
Rendell, Circuit Judge.
Besnik Rukiqi petitions from the BIA’s denial of his Motion to Reopen his asylum
case, which the IJ and BIA previously had denied as untimely. He alleges that the BIA
abused its discretion in denying his Motion to Reopen, which was based on a claim of
ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
Mindful of the heavy burden an alien bears on a motion to reopen, we will deny the
petition.

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1 Petitioner’s brief does not describe in detail the factual basis of his claim, so we draw
on the affidavit Rukiqi submitted with his Motion to Reopen.
3
I.
Besnik Rukiqi is a citizen of Serbia – a native of the province of Kosovo – who
contends he faces persecution there by Serbians on account of his Albanian background
and pro-Albanian sentiment.1 He maintains that he was arrested in 1988 and held for two
weeks, during which time he was brutally beaten and, thereafter, regularly stopped and
harassed by the police. In 1998, he states that Serbians began killing and “disappearing”
ethnic Albanians and burning Albanian villages. In April 1999, after his father had been
killed, Rukiqi states that he and his brother fled to the mountains where they survived for
two months, “nearly starving to death.” App. 10. They returned to their village after
NATO troops arrived in June 1999, finding their house had been burned and many male
relatives and friends killed. Even after NATO’s arrival, Rukiqi states that he faced
continued threats from Serbians as well as from extremist Albanian forces that resented
him for fleeing to the mountains rather than fighting. He contends that someone tried to
kill him on two occasions in January 2000 – once firing shots at him as he was walking
down a road. He fled to the United States in April 2000.
Rukiqi states that he hired lawyer Martin Vulaj two months after he arrived in the
United States, and that Vulaj assured him he would immediately file an asylum
application, along with petitions for withholding of removal and relief under the
Convention Against Torture (CAT). After months passed without word from Vulaj,

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4
Rukiqi called Vulaj’s office to check that his application was on track. He contends that
Vulaj told him he had filed the application. Apparently not convinced, Rukiqi later called
the office again, but could not make contact with Vulaj. Rather, an employee at Vulaj’s
office repeatedly told him that Vulaj had filed the application. As the one-year deadline
approached, Rukiqi states that he began “incessantly” calling Vulaj’s office. App. 3.
Two days prior to the one-year deadline, Vulaj’s staff summoned him to the office to
re-sign the asylum forms and provide new photographs. The staff assured him that his
application would be timely filed, but Vulaj filed it three days after the deadline. The
Department of Homeland Security then rejected the application because it was
incomplete. Vulaj finally filed the completed application two months later.
Another attorney, Timothy Garille, represented Rukiqi before the IJ. An Albanian
interpreter, a Mr. Brovac, was sworn, as was Rukiqi. There was an extensive discussion,
spanning seven pages of the Administrative Record, R. 184-91, regarding the filing date
of the asylum application. Finally, counsel for the Government produced a filed copy that
revealed that the application was filed on April 23, 2001 – three days late. The IJ asked
whether Rukiqi had “any extenuating circumstances to offer the court” that would excuse
his late filing. The IJ then recessed the hearing for “a while” – as the IJ described it – so
that Garille could discuss this with Rukiqi. R. at 193. After this break, Garille announced
to the IJ that he could offer no extenuating circumstances. The IJ consequently denied
Rukiqi’s asylum application as time-barred. The IJ then heard Rukiqi’s testimony in
support of his petitions for withholding of removal and relief under CAT, and denied

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5
them on substantive grounds. R. at 194-209.
On appeal, Rukiqi was represented by yet another attorney – Linda Flanagan –
who, as the Administrative Record suggests, R. at 99, worked for the “Law Offices of
Isejn Marku.” However, Rukiqi claims that he did not know Marku nor how Marku came
to be involved in the case. Brief for Appellant at 4-5. Flanagan’s brief, the argument
portion of which being barely a page long, did not discuss the IJ’s determination that
Rukiqi’s asylum application was time-barred, nor did it refer to Vulaj’s having been
ineffective in failing to timely file it. The BIA affirmed the IJ’s ruling on October 6,
2003.
Rukiqi retained his current counsel, Jennifer Oltarsh, shortly after the BIA’s denial
of his appeal and Ms. Oltarsh promptly filed a Motion to Reopen with the BIA. In the
motion, Rukiqi alleged that it was from Ms. Oltarsh that he first learned that Vulaj had
not timely filed the asylum application and, therefore, that he was deserving of relief on
the basis of extraordinary circumstances – to wit, ineffective assistance of counsel on the
part of Vulaj. With the Motion to Reopen, Rukiqi submitted an affidavit describing
Vulaj’s alleged errors in representation and including a copy of a complaint he sent to the
Departmental Disciplinary Committee of the First Judicial Department of New York
State. He also included the Committee’s reply stating that “Mr. Vulaj . . . has resigned
from the practice of law” and a copy of an order of the Appellate Division “striking
Mr. Vulaj’s name from the roll of attorneys admitted to practice in New York State.”
App. 27. Rukiqi’s brief also makes mention of the fact that he also complained about

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2Additionally, the BIA opined that, even had Rukiqi established extraordinary
circumstances, current country conditions in Kosovo reflect that ethnic Albanians face
only “some discrimination . . . not rising to the level of persecution.” Appx. at 19.
Therefore, the BIA held that, were it to allow reopening, Rukiqi could nevertheless not
“established a prima [facie] showing of eligibility for asylum.” Id.
6
Marku to the Disciplinary Committee and soon thereafter came to understand that Marku
“was forced to resign from the practice of law for disciplinary reasons.” R. at 15.
However, Rukiqi did not advance, and submitted no documentation in support of, an
ineffective assistance of counsel claim against Garille, Marku or Flanagan.
The BIA denied relief, stating that it did not believe extraordinary circumstances
were present. In doing so, the BIA relied on the fact that Rukiqi failed to establish that
the two attorneys who represented him before the IJ and the BIA were ineffective.
App. 19 (“Because the record shows that the respondent continued to use these attorneys
at his hearing and on appeal and the attorney at the hearing conceded the untimeliness of
the asylum request and the lack of extraordinary circumstances, we find that such
circumstances undermines his ineffective assistance of counsel claim.”).2 This petition
followed.

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7
II.
As Rukiqi failed to file a petition for review of the BIA’s initial denial of his
appeal from his asylum application, we review only the BIA’s denial of Rukiqi’s motion
to reopen. We view motions to reopen immigration proceedings “with strong disfavor.”
Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005). As we observed in Zheng, “we
review the BIA’s decision to deny reopening for abuse of discretion, mindful of the
‘broad’ deference that the Supreme Court would have us afford.” Id. (quoting Xu Yong
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001)).
On this appeal, the Government moved for summary affirmance of the BIA’s
denial of the motion to reopen, arguing that Rukiqi had not challenged the representation
by the attorneys who represented him before the IJ and the BIA, namely Garille and
Flanagan. This, notwithstanding the fact that it was Garille who made the fatal
concession before the IJ conceded that there were no extraordinary circumstances. While
the affidavit Rukiqi filed with his motion to reopen indicates that he did not “understand
any of the discussion [before the IJ regarding the late filing] and [was] not sure that it was
even translated,” surely Rukiqi heard the extensive discussion of the tardy filing and had
to realize that he had been misled by Vulaj. If neither Garille, before the IJ, nor Flanagan,
before the BIA, raised this issue, we cannot conclude that the BIA’s unwillingness to
reopen Rukiqi’s proceedings was abusive.
The reopening of agency proceedings based upon ineffective assistance of counsel
depends, initially, upon an asylum seeker’s compliance with the requirements of Matter

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8
of Lozada, 19 I. & N. Dec. 637 (BIA 1988). There, the BIA established that:
[a] motion based upon a claim of ineffective assistance of
counsel should be supported by an affidavit of the allegedly
aggrieved respondent attesting to the relevant facts. In the
case before us, that affidavit should include [1] a statement
that sets forth in detail the agreement that was entered into
with former counsel with respect to the actions to be taken on
appeal and what counsel did or did not represent to the
respondent in this regard. [2] Furthermore, before allegations
of ineffective assistance of former counsel are presented to
the Board, former counsel must be informed of the allegations
and allowed the opportunity to respond. Any subsequent
response from counsel, or report of counsel’s failure or refusal
to respond, should be submitted with the motion. [3] Finally,
if it is asserted that prior counsel’s handling of the case
involved a violation of ethical or legal responsibilities, the
motion should reflect whether a complaint has been filed with
appropriate disciplinary authorities regarding such
representation, and if not, why not.
Id. at 639. The BIA stated that such a “high standard” for ineffective assistance of
counsel claims is necessary to ensure that administrative records are sufficiently detailed,
because “[w]here essential information is lacking, it is impossible to evaluate the
substance of [an ineffective assistance of counsel] claim.” Id.
We considered the permissibility of the Lozada requirements in Xu Yong Lu,
259 F.3d at 133. In that case, the petitioner “claimed . . . his fundamental due process
rights” had been violated by the IJ’s refusal to reopen his case notwithstanding his
contention that ineffective assistance of counsel had stymied his attempt to appeal. Id. at
130. Although we expressed “concer[n] that courts could apply Lozada’s third prong so
strictly that it would effectively require all petitioners claiming ineffective assistance to

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9
file a bar complaint,” we upheld the BIA’s rule, “conclud[ing] that the Lozada
requirements are a reasonable exercise of the Board’s discretion.” Id. at 133, 129.
As to Vulaj, Rukiqi’s motion to reopen falls far short of Lozada’s requirements.
Although he submitted an affidavit with his motion to reopen, that affidavit fails to “se[t]
forth in detail the agreement that was entered into with former counsel.” Lozada, 19
I. & N. Dec. at 639. In the affidavit, Rukiqi refers to Vulaj as “my counsel,” but says
nothing about the substance of Vulaj’s agreement to represent Rukiqi. Additionally, the
motion to reopen does not establish that Rukiqi informed Vulaj of his dissatisfaction –
Lozada’s second requirement. See id. Although Rukiqi suggests otherwise in his brief on
appeal, the administrative record contains no evidence that Rukiqi sent Vulaj a copy of
his formal complaint or otherwise informed him of his discontent.
Additionally, as the BIA noted, Rukiqi has not even attempted to satisfy Lozada as
to the two lawyers who actively represented him before the IJ and the BIA: Garille and
Flanagan. This is not a minor point. On Rukiqi’s behalf – and, indeed, right in front of
him – Garille conceded that Rukiqi stated he could offer no extraordinary circumstances
that would excuse the late filing of his asylum application. Then, in her brief to the BIA,
Flanagan failed to raise the issue altogether. In sum, Rukiqi’s counsel conceded that his
asylum application was filed late, and then never pursued any challenge to this finding on
appeal to the BIA. In his motion to reopen, Rukiqi failed to even refer either to Garille or
Flanagan’s representation, much less argue that they were ineffective. The BIA’s view –
that Rukiqi’s motion was flawed because it did not claim ineffectiveness as to Rukiqi’s

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3The dissent argues that “[w]hile [the BIA’s opinion] might be read to say that Rukiqi
did not meet the Lozada requirements with respect to Garille, Flanagan, and Marku, it is
not a holding that Rukiqi failed to meet the Lozada requirements with respect to Vulaj.”
Dissent at 20-21. Therefore, in the dissent’s view, “it was an abuse of discretion for the
BIA to deny Rukiqi’s motion to reopen on the grounds that, of the lawyers from Vulaj’s
firm who represented Rukiqi, only Vulaj ended up disbarred.” Dissent at 11. However,
the BIA’s decision, as well as a substantial portion of this opinion, is premised on the idea
that, even had Rukiqi met the Lozada requirements with respect to Vulaj, he also had an
obligation to meet them with respect to those additional attorneys who actively
represented him before the BIA. The dissent simply has no response to the argument that
Rukiqi failed to meet this obligation and that his failure to do so dooms his motion to
reopen.
4This theory is based upon the assertion that Vulaj, Marku, Garille and Flanagan were
all members of the same law firm. We do not agree that the record supports this theory,
especially given that, at oral argument before this Court, counsel for Rukiqi twice
conceded that the record contained nothing explaining any potential relationship. The
dissent arrives at this conclusion by examining letterhead, and other bits of information
included in the Administrative Record. The BIA’s observation as to the association
between Vulaj and Marku, Flanagan and Garille, on which the dissent relies, is no more
than a parenthetical assumption. See Dissent at 3 (quoting Appx. at A18).
10
counsel who conceded, and then waived, the argument that there were extraordinary
circumstances to excuse the delay in Rukiqi’s filing – was not an abuse of discretion.3
Yet Rukiqi suggests, and the dissent argues, that Garille and Flanagan may have
failed to raise an extraordinary circumstances argument based on Vulaj’s ineffectiveness
out of an unethical allegiance toward Vulaj. The evidence on this point is non-existent.4
However, even if true, it constitutes a claim of ineffectiveness on the part of Garille and
Flanagan. To say that Garille and Flanagan purposefully failed to raise an argument
about Vulaj’s ineffectiveness is to say that both attorneys were, themselves, ineffective.
However, to establish such a claim in the immigration context, an alien must first satisfy

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Lozada. Although the dissent may disagree with the stringency with which we demand
that Rukiqi adhere to Lozada as to Vulaj, there can be no doubt that, with respect to
Garille and Flanagan, Rukiqi has failed to satisfy Lozada even under the most relaxed
application possible. Indeed, Rukiqi has not tried to satisfy Lozada at all.
In short, we are left with a situation in which Petitioner had to know of an
ineffectiveness claim and then waived it by failing to assert it before the BIA or in his
motion to reopen. We cannot nullify the BIA’s ruling based on an argument not
presented to it and, therefore, we find no abuse of discretion.
We are not employing the sort of “strict, formulaic interpretation of Lozada” that
we expressed concern about in Xu Yong Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir.
2001). This is not a case of a petitioner brought down because he fell short of a single
Lozada requirement; it is a case of a petitioner who failed to act when he first knew of
counsel’s failures and did not fulfill multiple requirement as to one attorney and all of the
requirements as to the other attorneys involved in his case. As in Xu Yong Lu, 259 F.3d
at 135, “[i]f we were to accept [Petitioner’s] arguments, we would seriously undermine
the BIA’s ability to assess the ‘substantial number’ of claims it receives, and thus
frustrate the stated goal of Lozada.”
Accordingly, we will DENY the Petition for Review.

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5 Rukiqi’s entry date is different on two copies of the asylum application filed on his
behalf. The date April 24 is typed on the form, but on the copy submitted as Exhibit 2 to
the Immigration Judge, that date is scratched out and April 22 is handwritten. At his
hearing, it was apparently established that Rukiqi entered on April 22.
12
JORDAN, Circuit Judge, dissenting.
Because I believe the majority’s opinion does indeed apply the type of “strict,
formulaic interpretation of Lozada” that we warned against in Lu v. Ashcroft, 259 F.3d
127, 133 (3d Cir. 2001), and because I believe the petitioner’s due process rights have
been violated, I must respectfully dissent.
I.
Besnik Rukiqi, an ethnic Albanian from Kosovo, in what is now the Republic of
Serbia, entered the United States on April 22, 2000.5 He applied for asylum, claiming
that he and his family had been persecuted in Kosovo by the Serbian government. As the
majority sets out, Rukiqi claims that he and his family were repeatedly threatened by the
police. According to the evidence he presented, he was arrested in 1989, beaten,
questioned about his family’s political activities, and detained. His problems with the
police resurfaced on April 27, 1999, when, he says, they forced him from his home at gun
point. His father was killed soon thereafter, and he and his brother escaped to the
mountains, where they nearly starved. Rukiqi then fled to the U.S.
Rukiqi asserts that, two months after he arrived in the United States, he hired
Martin Vulaj to file his asylum application. That assertion is supported by the
administrative record, which shows that Vulaj or someone working for him prepared an

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6 Even filed late, the application was incomplete, and it was refiled on June 21, 2001.
13
asylum application on Rukiqi’s behalf. The date on the signature line of the application is
June 29, 2000, approximately two months after Rukiqi entered the country. As the
majority states, Rukiqi claims that he repeatedly called Vulaj’s office over a period of
months because he never heard from either Vulaj or the INS about his application. Vulaj
at first assured him that the application had been filed. Later, Vulaj would not return his
calls, but an employee of Vulaj’s office continued to tell Rukiqi that the application was
in the government’s hands. Two days before the one-year filing deadline for the
application, Rukiqi received a call from Vulaj’s office telling him to come in and sign the
application forms again because the application had to be “resubmitted.” He went to the
office, signed a new set of papers, provided new photographs, and was promised that the
application would be filed immediately. Despite that assurance, however, the application
was not filed until April 25, 2001, three-days after the filing deadline.6
Vulaj was not present at any of Rukiqi’s hearings before the Immigration Judge
(“IJ”), nor did he participate in the appeal before the Board of Immigration Appeals
(“BIA”). In fact, Rukiqi had never previously met the attorneys who purported to
represent him at his hearings before the IJ and on appeal before the BIA. At the hearing
before the IJ on May 22, 2002, Rukiqi was represented by Timothy Garille. He was also
represented by Linda Flanagan at hearings on December 20, 2001 and February 7, 2002.
On appeal to the BIA, he was represented by Flanagan and Isjen Marku. Despite the

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majority’s assertion to the contrary, ante at 10, there is evidence in the record to indicate
that Flanagan, Garille, and Marku all worked with Vulaj in the same law firm during at
least part of the time relevant here. First, the BIA itself noted that the attorneys who
represented Rukiqi at his hearing and on appeal “were associated with the firm [Vulaj]
practiced with[.]” Appx. at A18. The majority readily disregards this observation by the
BIA, in a remarkable 180-degree reversal from the deference they give the BIA
throughout the rest of the opinion. Furthermore, evidence in the record supports the
BIA’s observation. See Administrative Record [“AR”] at 96 (Letter from Linda Flanagan
to the BIA on “Vulaj & Marku” letterhead); Appendix [“Appx.”] at A31 (later brief to the
BIA signed by Linda Flanagan “For the Law Offices of Isejn Marku”); AR 182 (Garille
stating he was from the firm of “Laura (indiscernible) Makoo (phonetic spelling)”, which
seems to refer to “Vulaj & Marku”). To the majority, these “bits of information,” ante at
n.3, amount to no evidence at all, but they persuade me, as they did the BIA, that Vulaj,
Marku, Flanagan, and Garille all worked together in the same law firm.
At the May 22, 2002 hearing, Garille was unaware of when Rukiqi’s asylum
application had been filed. When the attorney for the government noted that Rukiqi’s
application was filed three days late, the IJ asked Garille whether there were any
extraordinary circumstances to justify the late filing. Garille agreed that the asylum
application was untimely and stated that he did not “have any extenuating circumstances
to offer to the Court ... [f]or this seemingly [sic] failure to comply with the one year rule.”
Accordingly, in his oral opinion, the IJ noted that “[t]he respondent has not contested ...

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7 Rukiqi claims that he did not understand that discussion between Garille and the IJ,
and that he did not know what had happened until after his appeal was denied and he
spoke with another attorney. The majority implies that this claim is incredible because
the record indicates that Rukiqi and Garille conferred for “a while.” Ante at 4. However,
the majority’s implication requires the assumption that Garille communicated accurately
the import of the “extraordinary circumstances” question to Rukiqi. It also requires one
to believe that, knowing he was forfeiting the hearing he’d been struggling to get, Ruqiki
concurred in Garille’s concession that there were no extraordinary circumstances
justifying the delay. While the majority opines that “surely Rukiqi heard the extensive
discussion of the tardy filing and had to realize that he had been misled by Vulaj,” ante at
7, the only thing that appears sure to me from the record of the hearing is that the lawyer
supposedly representing Rukiqi’s interests made a concession about the late filing
because he was either unwilling or unable to describe the truly extraordinary
circumstances that the record shows did exist.
15
the date nor the circumstances surrounding his failure [to timely file his asylum
application] and in fact does not offer any explanation for the failure to file.” 7 The IJ thus
found that asylum was unavailable to Rukiqi.
The BIA affirmed the IJ’s decision. The BIA agreed that the asylum application
was late and that Rukiqi was not entitled to withholding of removal or relief under the
Convention Against Torture.
After hiring new lawyers, Rukiqi filed a motion to reopen his case with the BIA.
In his accompanying affidavit, Rukiqi described the circumstances of his asylum
application, including that he had hired Vulaj two months after he entered the country,
that Vulaj had repeatedly assured him that his application had been filed, and that he
learned of the late filing of his application only after he had hired a new lawyer. Rukiqi
stated that his “attorney’s outright misleading and lying to [him] are extraordinary
circumstances that warrant that [his] case be reopened.” In the motion itself, Rukiqi

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16
alleged ineffective assistance of counsel on the part of Vulaj, based on the allegations set
forth in the affidavit.
On March 2, 2004, the BIA denied Rukiqi’s motion to reopen. The BIA noted that
[i]n support of his ineffective assistance of counsel claim, [Rukiqi]
submitted his affidavit alleging that [he] was timely in asserting his asylum
claim but that the attorney delayed in filing the application. [He] also
submitted a complaint regarding the attorney, Martin Vulaj, to local bar
authorities and also submitted correspondence from the bar officials stating
that Mr. Vulaj has resigned from the practice of law. [He] also detailed the
basis of his asylum claim in his affidavit.
The BIA, nevertheless, found that Rukiqi had not established extraordinary circumstances
to justify the late application.
First, according to the BIA,
[t]he record reflects that at his hearing and on appeal, [Rukiqi] was
represented by other attorneys, not the one disbarred (although they were
associated with the firm he practiced with) and [Rukiqi] has not established
ineffective assistance on their part. Because the record shows that [he]
continued to use these attorneys at his hearing and on appeal and the
attorney at the hearing conceded the untimeliness of the asylum request and
the lack of extraordinary circumstances, we find that such circumstances
undermine his ineffective assistance of counsel claim.
Second, the BIA found
that even if [Rukiqi] established extraordinary circumstances within the
scope of 8 C.F.R. § 1208.4(a)(5)(iii), he has not established a prima facie
showing of eligibility for asylum. The United States Department of State
Country Reports for Yugoslavia for 2000 and 2001 submitted by [Rukiqi]
disclose that ethnic Albanians presently face at most some discrimination
not rising to the level of persecution. Consequently for this reason also we
find that reopening is not warranted.
II.

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17
The majority holds that we cannot reopen Rukiqi’s case because he failed to
comply with the BIA’s procedural requirements for stating an ineffective assistance of
counsel claim, as set forth in Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988).
Those requirements are:
(1) that the claimant submit an affidavit setting forth the relevant facts,
including the agreement with counsel about the scope of representation;
(2) that he inform counsel of the allegations and allow counsel an opportunity
to respond; and
(3) that he state whether a complaint has been filed with bar authorities, and if
not, why not.
Lu, 259 F.3d at 132. We have held that it is within the BIA’s broad discretion to impose
those requirements. Id. at 133. But, we have also recognized that “[t]here are inherent
dangers ... in applying a strict, formulaic interpretation of Lozada.” Id.; see also Fadiga v.
Gonzales, 488 F.3d 142, 156 (3d Cir. 2007) (reaffirming Lu’s warning about the “dangers
... in applying a strict, formulaic interpretation of Lozada[.]”); Castillo-Perez v. I.N.S.,
212 F.3d 518, 526 (9th Cir. 2000) (“Lozada is intended to ensure both that an adequate
factual basis exists in the record for an ineffectiveness complaint and that the complaint is
a legitimate and substantial one. Here, the record of the proceedings themselves is more
than adequate to serve those functions.”). For example, we have said that the need to file
a disciplinary complaint with regulatory authorities “is not an absolute requirement,” and
we have further “stress[ed] that the failure to file a complaint is not fatal if a petitioner
provides a reasonable explanation for his or her decision.” Lu, 259 F.3d at 134; see also

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18
Castillo-Perez, 212 F.3d at 526 (“while the requirements of Lozada are generally
reasonable, they need not be rigidly enforced where their purpose is fully served by other
means.”). In short, Lozada is not supposed to be the Procrustean bed it has become in this
case.
The majority holds, in accordance with the government’s argument, that the first
Lozada requirement has not been satisfied because, although Rukiqi submitted an
affidavit with his Motion to Reopen, he failed to set forth the details of his agreement
with Vulaj. I disagree that there is inadequate detail here. Rukiqi’s affidavit, amply
supported by the record on this point, shows that Rukiqi retained Vulaj to file his asylum
application. Rukiqi states that he hired Vulaj two months after entering the United States.
Indeed, Rukiqi’s asylum application, dated June 29, 2000, bears a signature purporting to
be Vulaj’s on a signature line for the “application preparer.” Rukiqi also details his phone
calls to Vulaj, responses he got from Vulaj and Vulaj’s staff, and the trip he made to
Vulaj’s office just two days before the filing deadline so that his asylum application could
be “resubmitted.” The record also contains evidence showing that attorneys from Vulaj’s
firm represented Rukiqi at his hearings and in his initial appeal to the BIA. It thus
appears clear to me that Rukiqi has satisfied the first Lozada requirement, as the record
demonstrates without contradiction that he retained Vulaj to represent him in the process
of obtaining asylum.
The majority also says that Rukiqi did not satisfy the second Lozada requirement,
since “the motion to reopen does not establish that Rukiqi informed Vulaj of his

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8 The letter from the Disciplinary Committee of the New York Supreme Court,
Appellate Division is carefully neutral in describing Mr. Vulaj’s name being stricken
from its roll of practicing attorneys, but the BIA read this - probably with good reason - as
tantamount to disbarrment, given the circumstances here.
9 Additionally, the reason that the BIA has given for establishing this requirement is to
prevent abuse of ineffective assistance of counsel claims by “allowing former counsel,
whose integrity or competence is being impugned, to present his version of events if he so
chooses[.]” Lozada, 19 I & N Dec. at 639. Here, however, it seems Vulaj has already
declined to defend his integrity and competence before the New York bar and has chosen
instead to have his name stricken from the roll of attorneys.
19
dissatisfaction ... .” Ante at 9. Notably, the government did not raise this argument in its
Motion for Summary Affirmance, perhaps because it recognized, as I do, that the
unrebutted record does indicate that Rukiqi tried to advise Vulaj of his complaint to the
New York bar, but that Vulaj could not readily be contacted since he had been ousted
from the practice of law.8 It is thus neither surprising nor unreasonable that Rukiqi has
been unable to contact him.9
Finally, the record shows that Rukiqi filed a complaint with the Disciplinary
Committee of the New York Supreme Court, Appellate Division, outlining his allegations
of Vulaj’s incompetence and deception. As noted, Rukiqi received a response from the
Committee informing him that Vulaj had “resigned from the practice of law,” and
enclosing the “order of the Appellate Division, First Judicial Department striking Mr.
Vulaj’s name from the roll of attorney’s admitted to practice in New York State.” Thus,
Rukiqi fulfilled the first and third Lozada requirements, and made a reasonable though
frustrated effort to fulfill the second. Because we are not supposed to apply a “strict,

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10The majority states that, “even had Rukiqi met the Lozada requirements with respect
to Vulaj, he also had an obligation to meet them with respect to those additional attorneys
who actively represented him before the BIA.” (Ante at n. 3; original emphasis.) It goes
on to say that “[t]he dissent simply has no response to the argument that Rukiqi failed to
meet this obligation and that his failure to do so dooms his motion to reopen.” (Id.) On
the contrary, there is a response and I have endeavored to give it appropriate emphasis: it
appears to me from the record, as it appeared to the BIA, that Marku, Garille, and
Flanagan were all associated with Vulaj in the practice of law during the time of Vulaj’s
malfeasance. My argument is simply that, under these circumstances, the Lozada
showing as to Vulaj suffices to cover the Vulaj colleagues who failed to point out that
malfeasance as the reason for Rukiqi’s late filing.
20
formulaic interpretation of Lozada[,]” I disagree with the majority’s conclusion that
Rukiqi’s “motion to reopen falls far short of Lozada’s requirements.” Ante at 9. It
appears, on the contrary, to adequately meet the letter of Lozada, and, importantly, to
fully meet the spirit of the policy behind that precedent.
It is worth observing that the BIA did not deny Rukiqi’s motion because he failed
to satisfy the procedural requirements of Lozada. In fact, the BIA did not mention
Lozada anywhere in its opinion. The BIA did cite 8 C.F.R. § 1208.4(a)(5)(iii), the
regulatory section that sets out the Lozada requirements, for the proposition that Rukiqi
had “not established extraordinary circumstances for failure to timely [file] his asylum
claim.” (A-18.) The BIA then went on to say that only Vulaj was disbarred, that Rukiqi
was represented by other attorneys, and that he did not allege that those attorneys were
ineffective. (A-18-19.) While this might be read to say that Rukiqi did not meet the
Lozada requirements with respect to Garille, Flanagan, and Marku, it is not a holding that
Rukiqi failed to meet the Lozada requirements with respect to Vulaj.10

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III.
Because I would hold that we have jurisdiction to review Rukiqi’s motion to
reopen, and that Rukiqi has fulfilled the Lozada requirements, I would also consider the
merits of his motion to reopen. We review a denial of a motion to reopen for abuse of
discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003). The BIA’s
decision must be upheld unless “it is arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (internal quotation marks omitted). For the
following reasons, I believe the BIA abused its discretion in denying the motion to
reopen.
A.
The BIA found that Rukiqi had not established extraordinary circumstances for
failure to timely file his asylum claim, as required by 8 C.F.R. § 1208.4(a)(5)(iii). It
reasoned that, even if Vulaj provided Rukiqi with ineffective assistance of counsel,
Rukiqi had been represented by three other attorneys who had not been disbarred. In light
of the record, however, that conclusion is unfounded and arbitrary.
Garille, Flanagan, and Marku, the three lawyers who represented Rukiqi at his
hearings before the IJ and on appeal to the BIA, were apparently all associated with Vulaj
before he left, or was driven from, the practice of law. See supra at Section I. Thus, each
had a conflict of interest that prevented him or her from appropriately addressing whether
Vulaj was responsible for the travesty of legal representation that Rukiqi claims led to his
asylum application being untimely. Vulaj’s partners or employees could not rightly be

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22
expected to answer the question posed by the IJ about extraordinary circumstances to
justify the late filing. Though there are people of great integrity who acknowledge facts
to their own detriment, we do not generally count on a lawyer confessing a partner’s or
employer’s malpractice, along the lines of saying, “Why, yes; my colleague repeatedly
lied to Mr. Rukiqi and led him to believe his asylum application was timely filed, though
it wasn’t. That’s the extraordinary circumstance that justifies the late filing of the
application.” Consequently, it was an abuse of discretion for the BIA to deny Rukiqi’s
motion to reopen on the grounds that, of the lawyers from Vulaj’s firm who represented
Rukiqi, only Vulaj ended up disbarred.
B.
The BIA also found that, even if Rukiqi had established extraordinary
circumstances through his claim of ineffective assistance of counsel, he failed to show a
prima facie case of eligibility for asylum. However, the BIA gave no indication that it
had considered the evidence Rukiqi submitted. His affidavit describes his arrest for
participation in a protest, and his having been “brutally beaten” during a two-week
incarceration. He also describes a history of being severely harassed by the police. He
provides a disturbing description of his father being captured and murdered by the
Serbian army, forcing Rukiqi and his brother to flee to the mountains. In denying
Rukiqi’s motion to reopen, the BIA did not mention any of the affidavit evidence.
Instead, both the IJ and the BIA relied on the United States Department of State Country
Reports for Yugoslavia for 2000 and 2001 to say that changed conditions in Rukiqi’s

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town show he would not be persecuted on his return. If this case were being remanded,
as I believe it should be, the IJ and the BIA may have ultimately decided, after weighing
Rukiqi’s evidence, that he was nevertheless not eligible for asylum. But, at least then his
evidence would have been weighed; he would have had the legal process he was due.
Ignoring Rukiqi’s statements about his experiences in Kosovo, statements that are plainly
relevant to the question of whether he has a reasonable fear of persecution, was, I believe,
an abuse of discretion by the BIA.
I therefore dissent.

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