Olyne Alade v. Attorney General United States


NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 20-3464 ________________ OLYNE TUTTY ALADE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _______________________ On Petition for Review of a Decision of the Board of Immigration Appeals BIA No. A077-606-583 (U.S. Immigration Judge: Alice Song Hartye) ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 5, 2021 Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges. (Filed: December 14, 2021) ________________ OPINION* ________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge Petitioner Olyne Tutty Alade asks us to review a denial by the Board of Immigration Appeals of her motion to reopen her immigration case based on her allegations that she received ineffective assistance of counsel in the initial proceedings. Alade claims the legal assistance by her prior counsel was constitutionally ineffective because he should have filed an application for asylum and related relief of withholding of removal or under the U.N. Convention Against Torture (“CAT”). Because Alade cannot show prima facie eligibility for the relief she claims prior counsel should have pursued, we will deny the petition for review. I. Alade, a native and citizen of Liberia, is facing a Final Order of Removal from the United States. The Order of Removal arose from two convictions of theft of movable property, in violation of 18 Pa. Cons. Stat. § 3921(a), from 2013 and 2014. In the initial proceedings before the Immigration Judge, Alade’s prior counsel sought adjustment of status under 8 U.S.C. § 1159(a) and a waiver of inadmissibility under 8 U.S.C. § 1159(c). Despite initially indicating that he might do so, prior counsel never filed an application for asylum and related relief either of withholding of removal or under the CAT. The grounds for the application would have been Alade’s sexual orientation. After the Board upheld the Immigration Judge’s decision, Alade retained new counsel and filed a motion to reopen alleging she received ineffective assistance of counsel due to prior counsel’s failure to apply for asylum and related relief on her behalf. On November 13, 2020, the Board denied Alade’s motion to reopen for three 2 reasons: (1) her motion was procedurally deficient; (2) prior counsel’s election not to pursue asylum and related relief was a “tactical decision[],” A.R. 4; and (3) Alade did not demonstrate she suffered prejudice as a result of prior counsel’s representation, since she could not show prima facie eligibility for the relief for which she claims he should have applied. In her petition for review, Alade challenges each of these bases for the Board’s denial of her motion to reopen. We agree with the Board’s conclusion that Alade could not show prima facie eligibility for the relief she claims prior counsel should have pursued and will deny the petition on that ground. Accordingly, we need not reach whether Alade’s motion was procedurally deficient and whether prior counsel’s failure to apply for the relief at issue …

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