Opinion
No. C 01-1708 MJJ,
August 25, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Before the Court is Gumercinda La Parra-Gonzalez's ("Petitioner") Petition for Writ of Habeas Corpus. Petitioner seeks a writ based on her claim that her due process rights under the Fifth Amendment to the United States Constitution have been violated because her attorney's ineffective assistance has permanently and completely deprived her of her right to appeal the Board of Immigration Appeals' ("BIA") decision in her case. (Petition For Writ of Habeas Corpus ("Petition") 6:3-6.) Petitioner argues that because her attorney failed to notify her of BIA's decision, she was unable to file a timely petition for review of the BIA's decision with the Ninth Circuit. (Petition 8:6-10.) Because petitioner has failed to show that the ineffective assistance of her counsel was the reason for the loss of her opportunity to appeal, her petition for writ of habeas corpus is DENIED.
FACTUAL BACKGROUND
Petitioner is a native and citizen of Guatemala who has lived continuously in the United States since 1991. Petitioner applied for asylum in December 1992 because she feared persecution in Guatemala. After denying petitioner's asylum claim, the INS served her with an Order to Show Cause ("OSC") charging her as deportable for entering the United States without inspection in 1991. Petitioner applied for asylum, withholding of deportation, and voluntary departure in the Immigration Court. (Petition 3:12-19.)On January 11, 1995, an Immigration Judge denied petitioner's request for asylum and withholding of deportation, and granted her voluntary departure. Petitioner submitted a timely appeal to the BIA. (Petition 3:21-24.) Around May 1995, while her BIA appeal was still pending, petitioner spoke with Melanie Lemus ("Lemus") about her case. (Petition 3:25-26, 4:1.) Lemus told petitioner that she wanted to find out what happened with her appeal, and she had petitioner sign a document which would allow her to see petitioner's immigration record. Lemus assured petitioner that she would handle the appeal, and that she was going to write something in support of the appeal. Lemus submitted a notice of appearance as petitioner's attorney before the Board, a request for an extension of the deadline to file petitioner's opening brief, and a brief in support of petitioner's asylum claim. (Petition 4:3-14.)
On January 3, 2001, the BIA affirmed the Immigration Judge's denial of asylum and withholding of deportation. The Board sent its decision to Lemus and not to petitioner. (Petition 4:18-25.) However, Lemus never notified petitioner that the Board had denied her case or mailed her a copy of the decision. (Petition 5:5-7.) On January 16, 2001, the Board attempted to serve petitioner with its decision by sending it through overnight mail to petitioner's address as reflected in its computer database. (SeeDeclaration of Nancy A. Abbott ("Abbot Decl.") at 2:5.) However, petitioner had moved, and had not informed the Board of her new address.
On February 15, 2001, petitioner went to see Jacquelyn Neuman ("Neuman"), an immigration attorney. Neuman made a phone call about petitioner's appeal and discovered that the BIA had denied the appeal on January 3, 2001. Neuman informed petitioner of this outcome. This was the first time that petitioner had actual notice that her appeal had been denied. By the time that petitioner discovered her appeal had been denied, the time period to file an appeal of the BIA's decision with the Ninth Circuit had passed, as had her time to voluntarily depart from the United States. (Petition 5:9-21.)
Petitioner seeks habeas corpus review of her deportation order on the grounds that Lemus was ineffective in failing to inform petitioner that the Board had entered a decision in her case. Petitioner is asking that the deportation be set aside, and for the Board to reissue its decision. This would give plaintiff thirty days to appeal for Ninth Circuit review.
LEGAL STANDARD
The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), significantly restricted the availability of judicial review of immigration decisions regarding the deportation of aliens. However, it did not modify or amend the general federal habeas statute, which still allows for review of both statutory and constitutional questions. Flores-Miramontes v. INS, 212 F.3d 1133, 1143 (9th Cir. 2000). The general statute, 28 United States Code Section 2241(c)(3), provides for habeas relief for those persons who are "in custody in violation of the Constitution or laws of treatises of the United States." Jurisdiction to consider habeas petitions has been extended to individuals who are subject to a final deportation order but who are not in custody, on bond, or on parole. See Williams v. INS, 795 F.2d 738, 745 (9th Cir. 1986). Arguments that a petitioner has been subject to ineffective assistance of counsel in immigration proceedings and has suffered prejudice because of this implicate the Fifth Amendment's guarantee of Due Process, and thus, are embraced by the habeas statute. See Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985).
For an ineffective assistance of counsel claim to succeed, the petitioner must demonstrate that the ineffective assistance of counsel resulted in a proceeding that "was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Id.Due process challenges, such as ineffective assistance claims, require a showing of prejudice to succeed, which is found "when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings." Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir. 1999). In addition, there are a number of procedural requirements that the petitioner must fulfill for an ineffective assistance claim to move forward: 1) petitioner must submit an affidavit detailing the agreement between herself and counsel with respect to the duties to be undertaken on her behalf, and what counsel did or did not do pursuant to that agreement; 2) petitioner must inform former counsel of the allegations made against him and must give counsel the opportunity to respond; and 3) if counsel's handling of the case allegedly involved a violation of ethical or legal responsibilities, petitioner must indicate whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not. Matter of Lozada, 19 I. N. Dec. 637, 639 (BIA 1988); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (adopting the Lozada requirements).
ANALYSIS
A. Ineffective Assistance of Counsel
Petitioner argues that but for the failure of Lemus to notify her of the BIA's decision, she would have filed a petition for review of the decision on time. (Petition 8:7-9.) "Where a defendant can show that there is a reasonable probability that he would have appealed but for counsel's deficient failure to consult with him about an appeal, prejudice is presumed." Dearinger v. Reno, 232 F.3d 1042, 1045 (2000) (adopting the holding of Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) within the context of immigration appeals). Petitioner argues that Lemus' failure to notify her of the BIA's decision permanently prevented her from appealing the decision or voluntarily departing the United States. (Petition 8:7-14.)
In Roe, the court said that "counsel's deficient performance must actually cause the forfeiture of the defendant's appeal. If the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief." Roe v. Flores-Ortega, 528 U.S. at 484. The court then went on to hold that "to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id.The holding in Roeindicates that whether there is reasonable probability that defendant would have acted is dependent on the outcome of the but for analysis.
Respondent argues that petitioner cannot satisfy the strict "but for" test in Dearinger.(Return and Opposition to Petition for Writ of Habeas Corpus ("Opposition") 5:14.) Respondent argues that petitioner does not meet the "but for" test because she did not inform the Immigration Court of her current address as required by Title 8 United States Code Section 1305(a). (Opposition 5:19-20.) Respondent contends that even though Lemus failed to notify petitioner of the BIA's decision, petitioner would have been timely notified of the BIA's decision if she had informed the Immigration Court of her current address as required under law. (Opposition 5:18-22.) Therefore, attorney error was not the but for cause of petitioner's inability to appeal the BIA's decision.
Petitioner acknowledges the fact that she did not notify Lemus or the Immigration Court of her current address, but argues that Lemus still could have reached her by phone because she continued to have the same phone number for eight months after her move to the new apartment. (Petitioner's Response to Respondent's Surreply ("Response") 2:14-19.) Also, petitioner argues that if Lemus had notified the Immigration Court of her first move, as she promised to do, she would have received that BIA's decision because she was in close contact with the current residents of her old apartment, and they would have given her any correspondence they received. (Response 3: 4-6.) Finally, petitioner argues that she was unable to notify Lemus of her second move because she could not locate Lemus. (Response 3: 6-9.)
Petitioner has not shown that Lemus' failure to notify her of the BIA's decision was a factor in permanently depriving her of the opportunity to seek review of the BIA's decision or voluntarily leaving the United States. If petitioner had complied with Title 8 United States Code Section 1305(a) and Title 8 United States Code Section 1252b(a)(1)(F)(ii) and notified the Immigration Court of her current address herself, she would have received the BIA's decision in time to file an appeal. When her attempts to contact Lemus failed, petitioner should have realized she needed to contact the Immigration Court to inform them of her address change. However, petitioner did not notify the Immigration Court of her current address as required, and her argument — if Lemus had notified the Immigration Court of her first move she would have received the correspondence at her second address — does not satisfy this requirement. Petitioner's reliance on the residents of her former apartment to give her any correspondence sent there does not release her from the responsibility of notifying the Immigration Court of her current address. Furthermore, petitioner's argument that she was unable to notify Lemus of her current address because she could not locate her does not explain why she did not notify the Immigration Court directly to give them her current address as required by law. While the Court empathizes with the unfortunate set of circumstances that led to plaintiff's failure to seek review of the BIA's decision in a timely fashion, the Court cannot grant relief where, as here, petitioner changed her address not once, but twice, and never informed counsel or the Board of second change of address. Thus, even if former counsel had advised the INS and the immigration court of the first move, 375 14th St., Apt. 22, the Board staff's efforts to send petitioner the Board decision of January 3, 2001 by Federal Express would have likely failed because petitioner no longer lived at that address.
In addition, even if petitioner could prove that she satisfied the "but for" test of Dearinger, she has not fulfilled all of the procedural requirements of Lozada.Petitioner did satisfy the first requirement by providing an affidavit that outlined her agreement with Lemus. However, she has not satisfied the requirement that she notify the attorney about the allegations, nor has she shown any proof that she filed a formal complaint with the appropriate authorities. Petitioner included a complaint form in her petition for writ of habeas corpus, but there is no indication that the form was actually filed.
B. Lack of Jurisdiction
Respondent asserts that this Court lacks jurisdiction to hear this petition because petitioner has failed to exhaust her administrative remedies. (Opposition 3:20-21.) "Because the BIA is fully competent to address ineffective assistance of counsel claims, an alien must first make a motion to reopen before the BIA." (Opposition 4:5-7.) See also Liuv. Waters, 55 F.3d 421, 426 (9th Cir. 1995). However, in Dearinger, 232 F.3d at 1045, the court noted that "a claim of ineffective assistance of counsel occurring after the BIA has ruled may be raised with the BIA by filing a motion to reopen," Lata v. INS, 204 F.3d 1241, 1245-46 (9th Cir. 2000), but "failure to do so does not bar this court from hearing the claim." See id.In this case, the Court does not find that the failure to file a motion to reopen before the BIA serves as a bar to jurisdiction.
CONCLUSION
Since petitioner has failed to show that attorney error was the reason she lost the opportunity to appeal, and because she failed to comply with the procedural requirements for an ineffective assistance of counsel claim, her petition for writ of habeas corpus is DENIED.