Opinion
No. C-04-02509 RMW, [Re Docket No. 1].
September 17, 2004
Robert B. Jobe, Sarnata M. Reynolds, Counsel for Petitioner(s).
Alison E. Daw, Counsel for Respondent(s).
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On June 23, 2004 Petitioner Sara Wati Chandra filed a petition for a writ of habeas corpus and a motion to stay deportation. On November 3, 1994 Chandra's application for asylum and withholding of deportation to Fiji were denied by a United States Immigration Judge ("IJ"). Chandra, however, was permitted to depart the United States voluntarily provided she do so within thirty days of the IJ's decision. On July 29, 1998 Chandra's appeal to the Board of Immigration Appeals ("BIA") was dismissed. On May 13, 1999 Chandra's petition for review by the Ninth Circuit was dismissed for lack of jurisdiction, presumably because it was untimely. Chandra now seeks an order from this court directing the BIA to reenter its order of dismissal so she can timely appeal to the Ninth Circuit. Chandra claims she is entitled to this relief because her counsel was ineffective for not advising her of the BIA's dismissal. This failure, she contends, resulted in a denial of her Fifth Amendment rights. For the reasons set forth below, the petition and motion are denied.
I. BACKGROUND
Petitioner is a native and citizen of Fiji who sought asylum in this country. On November 3, 1994, an IJ issued an order that petitioner was deportable after finding she had failed to demonstrate past persecution or a reasonable fear of future persecution. Through her counsel, Thomas Hiester, Chandra filed a timely appeal to the BIA. Thereafter, Chandra retained Rama Hiralal to represent her before the BIA. She claims he told her the appeal would take approximately eight years. She met with Mr. Hiralal every six months until October 1998, when he suddenly disappeared.Apparently, Chandra believed Mr. Hiralal was an attorney. In reality, Mr. Hiralal was not an attorney, and was later imprisoned for immigration fraud. A brief on Chandra's behalf was filed on April 5, 1995 with the BIA by attorney Leon Rountree, with Mr. Hiralal's signature on the proof of service. It is not clear what the relationship was between Mr. Rountree and Mr. Hiralal.
On July 29, 1998 the BIA issued a decision dismissing Chandra's appeal. The crux of Chandra's argument before this court stems from the allegation that her counsel never informed her of this adverse decision and that she never learned of the BIA decision by any other means. On February 12, 1999 Chandra filed with the Ninth Circuit a petition for review and a request for a stay of deportation. The Ninth Circuit dismissed the appeal.
In the fall of 2003, after Chandra's mother became a United States Citizen, Chandra retained another attorney who filed an application for adjustment of Chandra's status. On April 26, 2004 Chandra went to the San Francisco District Office to inquire about the status of her adjustment application and, at that time, was informed that there was a final order of deportation against her. Because Chandra informed the deportation officer that she had an infant she was breast-feeding, she was not taken into custody and instead ordered to report for removal in thirty days. On May 26, 2004 she reported to the District Office with counsel, and she obtained an additional thirty-day stay of deportation to get her affairs in order. She wrote and signed a sworn statement as follows:
I, Saras Wati Chandra, agreed to be prepared to be removable 30 days from this date with the understanding that I will file no further litigation in this matter. I intend to leave my children with my mother. And I understand that I will be prepared to leave the United States and [?] my tickets.
The court has not considered the effect of this promise.
On June 23, 2004, petitioner filed this petition for habeas corpus relief and a motion to stay deportation. Chandra requests this court to direct the BIA to re-issue its July 29, 1998 decision, thereby providing her with a new, thirty-day period in which to seek review of that decision by the Ninth Circuit.
II. ANALYSIS
A. Petitioner's Failure to Follow Established Procedures Bars Claim
Although exhaustion of administrative remedies is not a jurisdictional requirement to seeking habeas corpus relief for ineffective assistance of counsel, prudential concerns generally require exhaustion. "[W]e require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." Castro-Cortez v. INS, 239 F. 3d 1037, 1047 (9th Cir. 2001). Except where the record shows a clear and obvious case of ineffective assistance, the alien must satisfy procedural prerequisites by attempting to reopen the administrative proceedings on the basis of ineffective assistance of counsel. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002). A claim of ineffective assistance of counsel occurring even after the BIA has ruled may be raised with the BIA by filing a motion to re-open. Lata v. INS, 204 F.3d 1241, 1245-46 (9th Cir. 2000). To establish ineffective assistance of counsel a petitioner must: "1) provide an affidavit describing in detail the agreement with counsel; 2) inform counsel of the allegations and afford counsel an opportunity to respond; and 3) report whether a complaint of ethical or legal violations has been filed with the proper authorities, and if not why not." Lopez v. INS, 184 F.3d 1017, 1100 (9th Cir. 1995) (citing Matter of Lozada, 19 I. N. Dec. 637, 639 (BIA 1988). Here, Chandra never raised with the BIA her claim that counsel was ineffective because he failed to advise her of the BIA's dismissal of her appeal. Had Chandra sought to re-open when she first learned of the BIA's dismissal, the BIA could have generated a proper record, determined whether relief was appropriate and perhaps taken action that would have avoided the need for judicial review.
We have enunciated the prudential considerations weighing in favor of requiring agency exhaustion as whether `(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). Since Chandra did not exhaust available judicial and administrative remedies, her claim is barred unless it qualifies as one that shows on the record a clear and obvious case of ineffective assistance.Rodriguez-Lariz, 282 F.3d at 1226.
B. Bypassing Administrative Review Cannot Be Excused in This Case
1. Request for Relief Not Timely
Chandra waited until faced with immediate deportation to make her allegation of ineffective assistance of counsel. Although she claims that she was not aware of the BIA's decision until 2004, this contention is suspect. She either knew, or should have known, by no later than February 1999. In February 1999 she filed a petition in the Ninth Circuit for review of the BIA's decision denying her application of asylum, together with a request for a stay of deportation. She must have known that she was the subject of a deportation order because she applied for a stay. Even if for some reason she did not know at the time she filed, she would have learned that the BIA decided against her and no appeal was filed, at the very latest, in March 1999 when the government moved to dismiss her petition for lack of jurisdiction.
2. Administrative Review Would Have Allowed the BIA to Consider Relief and, At a Minium, Provided a Record for Judicial Review
Petitioner relies upon Dearinger ex. rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000), to argue that the court has habeas corpus jurisdiction over a claim of ineffective assistance of counsel occurring after the BIA has ruled notwithstanding a failure to move to reopen. The fact that the court has jurisdiction, however, does not mean that exhaustion of administrative remedies is necessarily excused. In Dearinger, it was undisputed that the counsel was ineffective because he failed to file a timely appeal. Id. at 1045. Here, however, the alleged deficiency is the attorney's failure to inform petitioner of the adverse BIA ruling. Unlike Dearinger, it is not clear that petitioner's attorney's alleged failure to inform her of the decision was the cause of petitioner's failure to pursue a timely appeal. The record reflects petitioner made multiple inquiries to the INS about the status of her family members' applications. Yet, there is no explanation for why, at those times, she could not or did not inquire into her own immigration status. It is also unclear what petitioner actually knew before she filed her own appeal to the Ninth Circuit. In addition, the record is silent as to Rountree's version as he was not notified and given the opportunity to respond to Chandra's allegation.
Since the record does not show a clear and obvious case of ineffective assistance of counsel resulting in a due process violation, the procedural prerequisite of a motion to reopen before the BIA in which the Lozada factors could be considered was required. Cf. Rodriguez-Lariz, 282 F.3d at 1227.
C. Lozada Factors
Despite promises to the contrary in the traverse (Traverse at 7:25-26), petitioner has failed to submit an affidavit or evidence of her compliance with the Lozada factors. The petition describes to a limited extent the agreement Chandra had with her former attorney, but there is no indication that he has been informed of the present allegation. More importantly, there is no indication that he has been given an opportunity to respond to the allegation.
Compliance with the Lozada factors is critical in petitioner's case. Had petitioner complied with the Lozada factors, her former attorney would have been given an opportunity to respond to the allegation and there would be a record of a contemporaneous reporting of the alleged malpractice. Counsel's response and the record of the report could potentially have resolved whether counsel actually informed Chandra of the adverse decision.
III. ORDER
The court finds petitioner has failed to satisfy the procedural prerequisites for her claim for habeas relief In light of these circumstances, the court rules as follows:
1. The petition for habeas corpus is DENIED; and
2. The motion to stay deportation is DENIED.