Filed: Jul. 27, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 27, 2006 July 5, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 04-51143 RUPERTO GUTIERREZ-MORALES, Petitioner-Appellant versus TOM HOMAN, ETC., ET AL., Respondents-Appellees Appeal from the United States District Court for the Western District of Texas Before SMITH, WIENER & STEWART, Circuit Judges. WIENER, Circuit Judge: Ruperto Gutierrez-Morales (“Gutierrez”) petitions us fo
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 27, 2006 July 5, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 04-51143 RUPERTO GUTIERREZ-MORALES, Petitioner-Appellant versus TOM HOMAN, ETC., ET AL., Respondents-Appellees Appeal from the United States District Court for the Western District of Texas Before SMITH, WIENER & STEWART, Circuit Judges. WIENER, Circuit Judge: Ruperto Gutierrez-Morales (“Gutierrez”) petitions us for..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 27, 2006
July 5, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-51143
RUPERTO GUTIERREZ-MORALES,
Petitioner-Appellant
versus
TOM HOMAN, ETC., ET AL.,
Respondents-Appellees
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, WIENER & STEWART, Circuit Judges.
WIENER, Circuit Judge:
Ruperto Gutierrez-Morales (“Gutierrez”) petitions us for
review of the Board of Immigration Appeals’ (“BIA”) decision
declining to reopen his removal proceedings. At issue is (1)
whether this court has jurisdiction to entertain Gutierrez’s
appeal, and (2) if so, whether Gutierrez is entitled to relief from
his order of deportation on the basis of ineffective assistance of
counsel.
I. FACTS & PROCEEDINGS
A. Gutierrez’s Removal Order
Gutierrez, a native and citizen of Mexico, has lived in the
United States since his admission as a lawful permanent resident in
1997. Later that year, Gutierrez was convicted of aiding and
abetting the entry of illegal aliens into the United States in
violation of 8 U.S.C. § 1325. Although Gutierrez’s offense made
him removable under the Immigration and Nationality Act (“INA”),
removal proceedings were not initiated against him until 2001, when
Gutierrez briefly traveled to Mexico from the United States. On
his return, Gutierrez was arrested and placed in removal
proceedings.
Before the Immigration Judge (“IJ”), Gutierrez did not
challenge his removability. Instead, he sought to apply for a
discretionary waiver of removal under § 240A of the INA,1 which
authorizes the Attorney General to cancel a permanent resident
alien’s removal when, inter alia, the alien’s deportation would
cause family hardship.2 The IJ ordered Gutierrez to file his
application for § 240A relief by June 24, 2002. Gutierrez failed
to do so and, as a result, the IJ held that Gutierrez had abandoned
his application and ordered him removed from the United States.
The next day, Gutierrez’s lawyer filed a motion with the IJ to
reopen Gutierrez’s removal proceedings. In support of this motion,
Gutierrez argued that his lawyer’s health problems prevented
1
8 U.S.C. § 1229b(a).
2
Gutierrez’s wife and child are United States citizens.
2
counsel from filing the § 240A relief application on time.
Unconvinced, the IJ denied the motion. The IJ reasoned in part
that, to the extent that Gutierrez was alleging ineffective
assistance of counsel, he had not satisfied the BIA’s procedural
requirements for bringing an ineffective assistance of counsel
claim.3 In July 2003, the BIA affirmed the IJ’s denial of
Gutierrez’s motion to reopen and dismissed Gutierrez’s appeal.
B. Gutierrez’s First Set of Challenges to His Removal Order
1. Petition for Review
In August 2003, Gutierrez made his first trip to this court,
petitioning us to review the BIA’s July 2003 decision affirming the
IJ’s denial of his motion to reopen.4 We affirmed the BIA’s
decision in an unpublished opinion. Specifically, we determined
3
See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). In
Lozada, the BIA held that it would consider granting a motion to
reopen on grounds of ineffective assistance of counsel only if
the alien (1) supported the motion by an affidavit in which he
details the allegedly ineffective assistance of his counsel, (2)
informed his counsel of the allegations of ineffectiveness and
gave the counsel an opportunity to respond, and (3) if
appropriate, filed a disciplinary complaint with his counsel’s
bar authorities. We held that the application of the
Lozada requirements is not an abuse of discretion in Lara v.
Trominski, 216 F.3d 487, 498 (5th Cir. 2000).
4
In addition to petitioning this court for review of the
BIA’s July 2003 decision, Gutierrez also filed two motions with
the BIA aimed at overturning that decision: a motion to
reconsider the BIA’s denial of his appeal and a motion to reopen
his proceedings before the BIA. The BIA denied these two motions
on October 31, 2003, and March 9, 2004, respectively; and
Gutierrez did not petition this court to review either of those
denials.
3
that the IJ properly denied Gutierrez’s motion to reopen “because
[Gutierrez] was informed of his right to apply for cancellation of
removal, and he was provided an opportunity to do so. Thus, the
[IJ] did not violate [Gutierrez’s] due process rights.”5
2. Habeas Corpus
Hedging his bets, Gutierrez filed a concurrent habeas petition
in the Western District of Texas challenging his removal order.
The district court denied Gutierrez’s habeas petition, ruling,
inter alia, that (1) because § 240A relief is entirely
discretionary, no interest in that relief is protected by the Due
Process Clause; and, alternatively, (2) because Gutierrez had yet
to comply with the BIA’s Lozada requirements, he could not present
his ineffective assistance of counsel claim. Gutierrez did not
appeal the district court’s denial of his first habeas petition to
this court.
C. Gutierrez’s Second Set of Parallel Challenges to His Removal
Order
Undeterred by his failure to obtain relief from removal,
Gutierrez initiated a new round of challenges. After firing his
lawyer and employing new counsel, Gutierrez returned to the BIA on
May 11, 2004, with a new motion to reopen. Gutierrez’s new motion
urged the BIA to exercise its authority to reopen his removal
5
Gutierrez-Morales v. Ashcroft, 96 Fed. Appx. 206, 207 (5th
Cir. 2004) (unpublished per curiam opinion).
4
proceedings sua sponte.6 Gutierrez contended that his initial
lawyer’s assistance had been constitutionally ineffective because
he missed the deadline for filing Gutierrez’s application for
waiver of removal. Notably, the record reflects that by the time
Gutierrez filed this new motion to reopen, he had complied with
Lozada’s procedural requirements.
On September 1, 2004, the BIA denied Gutierrez’s motion to
reopen. Specifically, the BIA held that Gutierrez’s case did not
present the type of exceptional circumstances that warrant the sua
sponte reopening of removal proceedings.
To challenge this BIA decision, Gutierrez took a belt-and-
suspenders approach, filing both a habeas action in the Western
District of Texas and a petition for review in this court. We
dismissed Gutierrez’s petition for review because he filed it on
October 4, 2004, more than 30 days after the BIA’s order, thus
making his petition untimely and depriving us of jurisdiction.7
In contrast, Gutierrez filed his habeas petition on September
23, 2004, within 30 days following the BIA’s order. In it, he
challenged the BIA’s decision on grounds of ineffective assistance
of counsel. The district court dismissed the petition for lack of
jurisdiction because, at that time, we had not yet ruled on
6
See 8 C.F.R. § 1003.2 (2005) (“The Board may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision.”).
7
See Gutierrez-Morales v. Ashcroft, No. 04-60886, at 1 (5th
Cir. Nov. 9, 2004) (unpublished order).
5
Gutierrez’s above-mentioned petition for review challenging the
same BIA decision. Thus, the district court concluded that
Gutierrez had not exhausted his administrative remedies, depriving
that court of jurisdiction. It is to appeal this decision of the
district court —— its dismissal of his September 2004 habeas
petition on jurisdictional grounds —— for which Gutierrez makes his
third trip to this court.
II. ANALYSIS
A. Petition for Review
While Gutierrez’s appeal was pending, Congress enacted the
REAL ID Act on May 11, 2005. The Act retroactively “divested
federal courts of jurisdiction over § 2241 [habeas] petitions
attacking removal orders.”8 Section 106 instructs district courts
to transfer pending habeas challenges to the appropriate court of
appeals and instructs courts of appeals to “treat the transferred
case[s] as if [they] had been filed pursuant to a petition for
review.”9 As we have previously noted, however, “Congress
neglected . . . to specify what was to happen to habeas petitions
that were already on appeal as of the REAL ID Act’s effective
date.”10 We filled this gap, declaring that “despite Congress’s
8
Rosales v. Bureau of Immigration & Customs Enforcement,
426 F.3d 733, 736 (5th Cir. 2005); see REAL ID Act § 106, Pub. L.
No. 109-13, 119 Stat. 231 (2005).
9
REAL ID Act § 106(c).
10
Rosales, 426 F.3d at 736 (emphasis added).
6
silence on this issue, habeas petitions on appeal as of May 11,
2005, . . . are properly converted into petitions for review.”11
As Gutierrez’s habeas petition was pending on May 11, 2005, we
treat it as a petition for review. In determining whether
Gutierrez properly filed his petition for habeas corpus cum
petition for review, we look to the date on which he filed his
habeas petition in the district court. That date is September 23,
2004 —— before the expiration of his 30-day window to seek review
of the BIA’s denial of his motion to reopen. Accordingly, the
converted petition for review is timely.
B. Successive Petition
This is Gutierrez’s third petition for review. Courts have
jurisdiction to entertain successive petitions for review only in
limited circumstances. Specifically, under 8 U.S.C. § 1252(d),
a court may review a final order of removal only if ——
(1) the alien has exhausted all administrative remedies
available to the alien as of right, and
(2) another court has not decided the validity of the
order, unless the reviewing court finds that the
petition presents grounds that could not have been
presented in the prior judicial proceeding or that
the remedy provided by the prior proceeding was
inadequate or ineffective to test the validity of
the order.12
Although this is Gutierrez’s third trip through the system, we find
that he could not have presented his ineffective assistance of
11
Id.
12
Emphasis added.
7
counsel claim until now.
When Gutierrez filed his first petition for review, the
factual basis for his ineffective assistance of counsel claim
existed. Gutierrez, however, could not have reasonably presented
that claim because he was still represented by the very same
counsel whom he now claims was ineffective. It would be
unreasonable to require an alien to comply with Lozada, the
necessary prerequisite to an ineffective assistance of counsel
claim before the BIA, while still under that counsel’s
representation.
Gutierrez could not have presented his claim of ineffective
assistance of counsel in his second petition for review because it
was not timely filed. We therefore did not have jurisdiction to
reach the merits of his claim. Accordingly, the plain terms of §
1252(d)(2) permit us to consider the instant petition and the claim
of ineffective assistance of counsel it advances. As we shall
explain, however, this is at most a Pyrrhic victory for Gutierrez.
C. Discretionary Relief
Under 8 U.S.C. § 1252(a)(2)(B)(ii), we have no jurisdiction to
review “any decision or action of the Attorney General” on relief
that is left to the discretion of the Attorney General. Section
1252's jurisdiction-stripping provisions, however, are not
absolute. Specifically, under § 1252(a)(2)(D), we retain
jurisdiction to review “constitutional claims or questions of law.”
8
Accordingly, as Gutierrez presents a constitutional claim of
ineffective assistance of counsel, we have jurisdiction to review
it on the merits.
At the outset, we note that this court has never squarely held
that an alien has “a constitutional right to effective counsel in
removal proceedings.”13 We have stated several times in dicta,
however, that an alien’s “right to due process is violated when
‘the representation afforded [him] was so deficient as to impinge
upon the fundamental fairness of the hearing,’ and, as a result,
the alien suffered substantial prejudice.’”14 We assume here for
the sake of argument that such a right exists.
Even if we assume that aliens have a constitutional
entitlement to effective assistance of counsel in some
circumstances, those before us today are not among them. This is
because “‘the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a
13
Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004)
(quoting Patel v. United States Attorney Gen.,
334 F.3d 1259,
1262 (11th Cir. 2003) (emphasis added)).
14
Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (quoting
Paul v. INS,
521 F.2d 194, 198 (5th Cir. 1975)) (internal
citations omitted). See also
Assaad, 378 F.3d at 475
(Ineffective assistance of counsel may violate an alien’s right
to due process under the Fifth Amendment “if the ‘representation
afforded [the alien]... was so deficient as to impinge upon the
fundamental fairness of the hearing.’”) (quoting
Paul, 521 F.2d
at 198).
9
liberty interest.’”15 Concomitantly, when there is no due process
right to the ultimate relief sought, there is no due process right
to effective assistance of counsel in pursuit of that relief.16
Here, Gutierrez seeks a waiver of removal from the Attorney General
on the basis of family hardship —— ultimate relief that is purely
discretionary. Accordingly, Gutierrez has no right to effective
assistance of counsel in pursuing that waiver.
Gutierrez attempts to distinguish his case from Assaad on the
ground that Assaad had an opportunity to present his waiver
application for consideration on the merits through a formal
hearing with the IJ; Gutierrez, on the other hand, did not have any
opportunity to present his waiver application on its merits to
either the IJ or BIA. This, however, is a classic distinction
without a difference. We have squarely held that “neither relief
from removal under discretionary waiver nor eligibility for such
discretionary relief is entitled to due process protection.”17
Stated differently, an alien has no due process right to a hearing
to determine his eligibility for relief that is purely
15
Assaad, 378 F.3d at 475 (quoting Mejia Rodriguez v. Reno,
178 F.3d 1189, 1146 (11th Cir. 1999)).
16
Id. (concluding that an alien’s due process rights were
not infringed by allegedly constitutionally ineffective
assistance of counsel because the relief sought was purely
discretionary).
17
Nguyen v. Dist. Dir., Bureau of Immigration and Customs
Enforcement, 400 F.3d 255, 259 (5th Cir. 2005) (emphasis in
original).
10
discretionary.18 By parity of reasoning, such an alien also has no
right to effective assistance of counsel in seeking to obtain such
a hearing. Thus, Gutierrez’s argument fails.
III. CONCLUSION
As Gutierrez has no right to effective assistance of counsel
in obtaining a discretionary waiver of removal from the Attorney
General, his petition for review is
DISMISSED and outstanding motions are DENIED.
18
Id.
11
