Opinion
Civil Action No: SA-03-CA-0736-XR
November 20, 2003
ORDER
On July 31, 2003, the Petitioner Ruperto Gutierrez-Morales filed an application for writ of habeas corpus and an application for a temporary restraining order ("TRO") and for preliminary and permanent injunctions. Petitioner seeks to prevent his deportation from the United States. On that same date, the Honorable Fred Biery granted the application for temporary restraining order. On August 5, the Court ordered that the status quo be preserved and the government subsequently filed its motion to dismiss, or in the alternative motion for summary judgment. The government's motion is GRANTED and the Petitioner's Application for Writ of Habeas Corpus and for preliminary and permanent injunctions is DENIED.
Jurisdiction
This Court has jurisdiction to review the Petitioner's petition for writ of habeas corpus. 28 U.S.C. § 2241; Cano-Miranda v. Ashcroft, 262 F.3d 477 (5th Cir. 2001).
Procedural History and Background
Petitioner, a citizen of Mexico, was admitted to the United States as a lawful permanent resident on May 4, 1990. On December 30, 1999, he was convicted in the United States District Court, Western District of Texas, Del Rio Division of aiding and abetting illegal aliens to enter into the United States in violation of 8 U.S.C. § 1325. He was fined and placed on probation. Although his conviction would have entitled the Department of Homeland Security, formerly the Immigration and Naturalization Service, to take him into custody, he was not placed in removal proceedings at that time.
Petitioner pled guilty to the offense on December 14, 1999.
On July 19, 2001, upon his return from a visit to Mexico, an Inspector discovered that Petitioner had been previously convicted of a removable offense. Petitioner was arrested at the San Antonio International Airport. At that time Petitioner admitted that he was previously convicted as described above. He was placed in removal proceedings as an arriving alien subject to removal pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(E)(i).
A removal hearing was scheduled before an Immigration Judge on July 25, 2OO2. An agreed motion for continuance was filed on June 20 with regard to the July 25 hearing, but was denied on July 8 because no reason for the continuance was stated in the motion.
An earlier hearing was continued due to Petitioner's counsel's hospitalization and treatment for cardiac illness.
On July 10, the Immigration Judge (IJ) determined that Petitioner failed to timely file an application for relief. The Immigration Judge cancelled the July 25 hearing as unnecessary because there was no other pending request for relief. He further ordered Petitioner removed from the United States.
On July 11, Petitioner sent a motion to reopen and amended motion for continuance arguing that his counsel was under the care of a cardiologist. The motion further explained that counsel's illness was the cause of the oversight in failing to timely file the application for relief. The motion to reopen was denied on July 25.
On July 11, Petitioner filed an Application for Cancellation of Removal for Certain Permanent Residents. He requests that his removal be cancelled under section 240A(a) of the Immigration and Nationality Act because he has met the various years in residency requirements and has not been convicted of an aggravated felony.
Petitioner thereafter filed a notice of appeal to the Board of Immigration Appeals (BIA) arguing that denying him the right to avoid deportation because Petitioner's attorney filed an application 19 days late was a denial of due process under the Fifth Amendment. That appeal was dismissed and the decision of the Immigration Judge was affirmed. The BIA concluded that Petitioner's attorney failed to explain his failure to timely file an application and that his previous hospitalizations in February and March failed to explain his missing a June deadline. With regard to a possible claim of ineffective assistance of counsel, the BIA concluded that Petitioner had failed to comply with the requirements enumerated in Lozada v. I.N.S., 19 I N Dec. 637, aff'd, 857 F.2d 10 (1st Cir. 1988).
On August 7, 2003, Petitioner filed a Petition for Review of the BIA decision in the United States Court of Appeals for the Fifth Circuit. In that Petition for Review he argues that he "was denied the opportunity to apply for cancellation of removal" and that such denial was a gross violation of his due process right.
As of the date that this order was signed, the appeal to the Fifth Circuit remains pending.
Analysis and Discussion
In this Application for Writ of Habeas Corpus, Petitioner argues the following: (1) he was not an "arriving alien" and was illegally arrested on July 19, 2001 at the San Antonio International Airport; (2) his 1999 conviction did not involve an aggravated felony and accordingly he was eligible to be considered for cancellation of removal; and (3) the Immigration Judge abused his discretion in denying his motion to reopen and amended motion for continuance.In the government's motion to dismiss, or in the alternative, motion for summary judgment the government argues: (1) assuming Petitioner should have been treated as an "admitted alien", rather than "arriving alien", he was still subject to arrest and removal based on his previous conviction; (2) alternatively, Petitioner waived any complaint regarding an illegal arrest because he clearly admitted his previous conviction; (3) this Court has no jurisdiction because Petitioner is appealing the BIA decision, and thus he has not exhausted all administrative and judicial remedies before seeking habeas relief; (4) this Court has no jurisdiction to review the denial of the motion to reopen and motion for continuance, and that such discretionary decisions are barred from judicial review by 8 U.S.C. § 1252(a)(2)(B); (5) eligibility for discretionary relief from a removal order is not a liberty or property interest warranting due process protection; and (6) any ineffective assistance of counsel argument was not raised below and there was no compliance with Lozada.
I. Denial to seek discretionary relief does not constitute a violation of due process.
Petitioner argues that he was unconstitutionally deprived of an opportunity to apply for relief under 240A(a) of the Immigration and Nationality Act. See 8 U.S.C. § 1229b(a) ("The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien — (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. ") (emphasis added).
A similar argument concerning another type of discretionary relief has been made and rejected by the Fifth Circuit. In United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), the Petitioner argued that neither the Immigration Judge nor anyone at the INS told him that he was eligible to apply for § 212(c) relief. Lopez-Ortiz argued that his removal hearing therefore failed to afford due process. In response the Fifth Circuit stated:
Lopez-Ortiz presupposes that eligibility for discretionary relief under § 212(c) is an interest warranting constitutional due process protection. We disagree. St. Cyr's holding was not grounded in § 212(c) relief having the status of a constitutionally protected interest; rather, it was based on the Court's interpretation of IIRIRA. In fact, § 212(c) relief, because it is available within the broad discretion of the Attorney General, is not a right protected by due process.
This circuit has noted that § 212(c) relief "`was couched in conditional and permissive terms. As a piece of legislative grace, it conveyed no rights, it conferred no status,'" and its denial does not implicate the Due Process clause. Other circuits considering the effect of St. Cyr likewise have held that discretionary relief is not a vested right meriting due process protection.
Because eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection, we hold that the Immigration Judge's error in failing to explain Lopez-Ortiz's eligibility does not rise to the level of fundamental unfairness.Id. at 230-31 (citations omitted)
Here, Petitioner makes a similar claim arguing that the denial of an opportunity to seek 240A(a) relief is a denial of due process. Like section 212(c), 240A(a), however, is couched in conditional and permissive terms. According to the Fifth Circuit, this does not constitute a violation of due process because the Petitioner has no constitutional entitlement to eligibility for discretionary relief. Id.; see also United States v. Sotelo-Mendoza, 234 F. Supp.2d 671, 678 (W.D. Tex. 2OO2).
The government does not dispute that his 1999 conviction did not involve an aggravated felony and accordingly he was eligible to be considered for cancellation of removal. However, this does not assist the Petitioner. As explained above, 240A(a) is conditional and permissive.
II. Petitioner may have been "illegally arrested" as an "arriving alien" but this mistake does not entitle Petitioner to relief.
There is no dispute that Petitioner gained permanent legal resident status in this country in 1990. The question is whether his status changed when he returned from his visit to Mexico and presented his credentials to INS agents at San Antonio International Airport on July 19, 2001. To ascertain his status at that time, reference must first be made to 8 U.S.C. § 1101(a)(13)(C) .If Petitioner meets any of the exceptions listed in § 1101(a)(13)(C), he will not be considered an "admitted alien" seeking admission. We next determine whether any of the exceptions listed in section 1101(a)(13)(C) apply to this case. Only two of the subsections need to be discussed here — (iv) has [Petitioner] departed from the United States while under legal process seeking removal of the alien from the United States, and (v) has [Petitioner] committed an offense identified in section 1182(a)(2) of this title. Subsection (iv) is not applicable because it is undisputed that after Petitioner was convicted on December 30, 1999, he was not placed in removal proceedings until after he was arrested at the airport. With regard to subsection (v) Petitioner did commit an offense identified in section 1182(a)(6), but not 1182(a)(2). Accordingly, Petitioner should have been treated as an "admitted alien". The question now becomes, what effect does this illegal arrest have? According to I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479 (1984), "[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding." Id., 104 S.Ct. at 3484. Further, evidence derived from illegal but peaceful arrests by Immigration and Naturalization Service officers need not be suppressed in a civil deportation hearing held by the INS. Id. at 3489. Thus, even if Petitioner was arrested illegally, it has no bearing on his deportation.
III. This Court has only limited jurisdiction to review the Immigration Judge's denial of Petitioner's motion to reopen and amended motion for continuance.The government argues that pursuant to 8 U.S.C. § 1252(a)(2)(B) , this Court has no authority to review the Immigration Judge's denial of Petitioner's motion to reopen and amended motion for continuance. The Supreme Court has held in INS v. St. Cyr, 533 U.S. 289, 297 (2001), that the district courts continue to have jurisdiction under 28 U.S.C. § 2241 to entertain habeas corpus petitions based on pure questions of law. Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003). In order to prevail in federal habeas Petitioner must show that the final order of deportation is "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). It is not enough to show abuse of discretion and thus a federal habeas petition is not an ideal vehicle for challenging a discretionary decision of the Board of Immigration Appeals. Cf. St. Cyr, 533 U.S. 289, 314 n. 38 ("[T]he scope of review on habeas is considerably more limited than on [Administrative Procedures Act]-style review.").
Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), I229b, I229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
"It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Demore v. Hyung Joon Kim, __ U.S. __, 123 S.Ct. 1708, 1717 (2003). The decision of the Immigration Judge to deny the motion to reopen and amended motion for continuance as a matter of discretion was not arbitrary and capricious, and thus not a violation of substantive due process. A substantive due process violation is established only if the government's actions are irrational or motivated by constitutionally impermissible factors. See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590-91(3d Cir. 1998). Here, the Petitioner was already granted one continuance, and his attorney failed to specify any grounds for his request for a second continuance. Although this Court may have ruled differently based on Petitioner's attorney's poor health, it cannot be said that the Immigration Judge's ruling was irrational or motivated by constitutionally impermissible factors. Petitioner does not deny that he was given timely notice of his hearing and the date upon which his application for cancellation of removal was required to be filed. See Webb v. Weiss, 69 F. Supp.2d 335, 338 (D. Conn. 1999) (Petition for habeas denied. "There is nothing inherently unconstitutional with an order of removal entered in absentia. . . . So long as the statutory requirements of notice were met, thus affording Petitioner an opportunity to be heard, whether to continue or reopen the hearing are matters committed to the sound discretion of the IJ.").
IV. An ineffective assistance of counsel argument was not raised before the BIA, there was no compliance with Lozada, and this Court is without jurisdiction to consider this argumentThe BIA discussed in its decision that Petitioner may be suggesting that his representative afforded him ineffective assistance of counsel with regard to the filing of his application for relief. The BIA concluded, however, that Petitioner failed to comply with the requirements enumerated in Lozada. Here, both parties claim that Lozada does not apply. Notwithstanding the attorneys' contention, the Court will review this possible claim to ensure that Petitioner's claims are fully and fairly considered.
The First Circuit in Lozada recognized that a petitioner is entitled to due process. Nevertheless, the Court went on to state that: "Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Id. at 13. The Fifth Circuit reviewed the Lozada decision in Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000). In Lara, Lara's attorney did not inform him of an adverse BIA decision until after the statutory period for seeking review in the Fifth Circuit had expired. Therefore, no petition for review was attempted. Lara retained new counsel, who filed with the BIA a motion to reopen the deportation proceedings on the basis of ineffective assistance of counsel. The BIA denied that motion finding that Lara had not complied with the procedural requirements for stating an ineffective assistance claim set forth in Lozada.
The Fifth Circuit in Lara restated the Lozada requirements embraced by the BIA. It is uncontested that Gutierrez-Morales did not satisfy any of the Lozada requirements. Nor did Gutierrez-Morales make such a claim to the BIA.
"The BIA set out three procedural requirements for supporting a claim of ineffective assistance of counsel as a basis for reopening. The BIA required: 1) an affidavit by the alien setting forth the relevant facts, including the agreement with counsel regarding the alien's representation; 2) evidence that counsel was informed of the allegations and allowed to respond, including any response; and 3) an indication that, assuming that a violation of "ethical or legal responsibilities" was claimed, a complaint has been lodged with the relevant disciplinary authorities, or an adequate explanation for the failure to file such a complaint." Id. at 496.
The Fifth Circuit has also addressed an ineffective assistance claim in Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2002). In Goonsuwan, the Court stated that the "right to due process is violated when the representation afforded . . . was so deficient as to impinge upon the fundamental fairness of the hearing, and that, as a result, the alien suffered substantial prejudice." Id. at 385 [citation omitted]. In Goonsuwan, the alleged deficiency in counsel's performance was his failure to introduce documentary evidence at the deportation hearing. The district court found "that counsel's failure to present relevant and necessary evidence in support of Goonsuwan's application for discretionary relief rendered the proceeding fundamentally unfair and that substantial prejudice resulted." Accordingly, the district court granted petitioner's writ of habeas and ordered a new hearing. In reversing, the Fifth Circuit found that Goonsuwan's failure to raise his ineffective assistance of counsel claim before the BIA deprived the district court of jurisdiction to consider the issue in Goonsuwan's petition for habeas corpus. Id. at 389.
This Court is concerned that in immigration matters that are handled by the same attorney throughout the administrative and appeal process, there may arise situations where immigrants unfamiliar with the administrative process and the English language may not be well served by their counsel. In such situations, it is likely that ineffective assistance of counsel claims will not be presented to the BIA. Nevertheless, this Court is bound to follow the above precedents and conclude that it is without jurisdiction to consider any ineffective assistance of counsel claim since it was not raised before the BIA.
The government's motion to dismiss, or in the alternative motion for summary judgment (docket no. 7) is GRANTED and the Petitioner's Application for Writ of Habeas Corpus and for preliminary and permanent injunctions (docket no. 1) is DENIED in its entirety.