Opinion
97 Civ. 6580 (MBM)
April 26, 2000.
PABLO E. POLASTRI, ESQ. ELADIO A. TORRES, ESQ. (Attorneys for Petitioner) Law Office of Dr. Antonio C. Martinez, J.D., New York, NY.
MARY JO WHITE, ESQ. United States Attorney for the Southern District of New York. KRISHNA R. PATEL, ESQ. Assistant United States Attorney (Attorneys for Respondants) New York, NY.
OPINION AND ORDER
Fernando Diaz petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994), challenging the ruling of the Board of Immigration Appeals ("BIA") that his 1993 conviction for theft of government property renders him deportable. He also contends that he received ineffective assistance of counsel during his deportation proceedings. The INS argues that Diaz conceded his deportability and that the petition fails on the merits. For the reasons set forth below, the writ is denied and the petition is dismissed.
I.
The relevant facts are undisputed. Diaz, a native and citizen of the Dominican Republic, entered the United States illegally on or about January 1, 1981. (Pet. ~ 6) Diaz became a lawful temporary resident of the United States on November 19, 1987 and a lawful permanent resident on March 27, 1990. (Id.)
"Pet." refers to Diaz's Petition for a Writ of Habeas Corpus (With Stay of Deportation) dated September 2, 1997.
On June 18, 1993, Diaz pleaded guilty to a single-count indictment charging that "[i]n or about and between March 1985 and May 1992, both dates being approximate and inclusive," Diaz participated in a welfare fraud scheme in violation of federal law. (Pet. Mem. Supp. Ex. 2) The indictment accused Diaz of selling fraudulent identification documents and thereby aiding various individuals in stealing more than $221,000 in benefits payments and food stamps from the government. (Id.) According to the presentence report prepared after his guilty plea, Diaz served as a "document vendor" supplying false birth certificates and social security cards to at least seven women who opened some 18 false welfare cases with the documents. (Id. Ex. 5 at 11) The presentence report dates Diaz's involvement in the scheme as far back as July 1985, while noting that most of his activity occurred between 1989 and 1991. (Id.)
On May 6, 1993, following his indictment, Diaz entered into a plea agreement with the United States Attorney's Office for the Eastern District of New York whereby the government agreed that "no criminal charges [would] be brought against [Diaz] for his heretofore disclosed participation in criminal activity involving welfare fraud from the period 1987 to the present." (Id. Ex. 3 at 3)
During the plea allocution on June 18, 1993, the presiding magistrate judge explained to Diaz twice that the charges to which he was pleading guilty stemmed from activities that occurred between March 1985 and May 1992. (Id. Ex. 1 at 10,
18) The second of these explanations reads as follows:
THE COURT: The indictment charges that you aided and abetted in the sale of fraudulent identification documents for the purpose of stealing and converting 1820 benefit payments under the Aid to Family with
Dependent Children Program and food stamps, and that these acts took place between March 1985 and May 1992, and that the amount of the benefit payments stolen and converted was $164,537 and the food stamps were worth $57,172. Do you understand?
THE DEFENDANT: Yes.
(Id. at 18) (emphasis added) Diaz later was sentenced to 12 months' imprisonment. (Pet. ¶ 11)
On the basis of Diaz's conviction, the INS instituted deportation proceedings against him. By Order to Show Cause, the government charged that Diaz was deportable pursuant to section 241(a)(2)(A)(i) of the Immigration and Nationality Act (the "Act" or "INA") as an alien convicted of a crime involving moral turpitude committed within five years of his entry into the United States for which he had been sentenced to confinement for at least one year. See 8 U.S.C. § 1251 (1994).
At the time that the Order to Show Cause issued, the relevant statutory provision was codified at 8 U.S.C. § 1251 (a)(2)(A)(i) (1994). The statutory provision subsequently was amended and recodified at 8 U.S.C. § 1227(a)(2)(A)(i) (Supp. II 1996). The changes do not affect this case.
Diaz's deportation hearing commenced in Oakdale, Louisiana, where he was in INS custody. (Patel Decl. Ex. A at 44). After twice adjourning the hearing to allow Diaz to retain counsel (Id. at 46, 48), the Immigration Judge ("IJ") reconvened the hearing on May 13, 1994. (Id. at 50-51) At that time, Diaz was represented by Maria Liz, Esq., who appeared by telephone. (Id. at 51) After Liz waived reading of the charge and admitted service, the IJ asked how Diaz wished to plead. (Id.) Liz stated: "Well, to the allegations, I concede deportability." (Id.) Liz then designated the Dominican Republic as the country to which Diaz would be deported and indicated that Diaz wished to apply for an adjustment of status under section 212(h). (Id.) Finally, Liz sought a change of venue to New York because Diaz, by then released from INS custody, resided there. (Id. at 52) The IJ granted the change of venue and invited Liz to file documents in support of Diaz's adjustment of status with the court in New York. (Id.)
Exhibit A of the Patel Declaration consists of a copy of the record of Diaz's deportation proceedings, as certified by the Justice Department's Executive Office for Immigration Review.
Technically, Diaz wished to apply for an adjustment of status under section 245 of the INA. See 8 U.S.C. § 1255. To do so, an applicant must show, inter alia, that he is admissible to the United States for permanent residence. See id. Because Diaz's conviction for a crime involving moral turpitude rendered him inadmissible, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), Diaz first needed to obtain a waiver of inadmissibility in order to become eligible for a discretionary adjustment of status. See In re Mendez-Moralez, Interim Decision No. 3272, 1996 WL 227774, at *6-7 (BIA Apr. 12, 1996).
When Diaz appeared before an IJ in New York on June 15, 1994, the IJ summed up the earlier proceedings, including that "deportability [had been] conceded as charged," and asked whether his recitation was correct. (Id. at 55) Liz answered in the affirmative. (Id.) The hearing that day was continued, as it was on another occasion as well, to afford Liz the opportunity to file documents in support of Diaz's adjustment-of-status application. (Id. at 55-61)
The hearing resumed on January 17, 1995, with Diaz represented by Andrew Friedman, another lawyer from Liz's firm. (Id. at 63) The IJ referred to the earlier proceedings, during which "the allegations contained [in the Order to Show Cause] were admitted and deportability was conceded," and asked, "Do you wish to stand by those admissions and concessions?" (Id.) Friedman answered, "Yes, Judge." (Id.)
On the basis of Diaz's admission, the IJ found that the INS had satisfied its burden of demonstrating Diaz's deportability. The IJ explained: "The respondent, through counsel, admitted all of the factual allegations contained in the Order to Show Cause and conceded deportability on the charge set forth above. . . Based upon these admissions, I find that evidence of his deportability is clear, convincing and unequivocal." (Id. at 32)
Because Diaz was convicted of a crime involving moral turpitude, he automatically became inadmissible and could not be considered for a discretionary adjustment of status unless that inadmissibility were waived. See supra n. 4. The IJ denied Diaz's application for this waiver. The IJ found, first, that Diaz had failed to demonstrate the "extreme hardship" that is a prerequisite to a discretionary waiver of inadmissibility under section 212(h), see 8 U.S.C. § 1182(h)(1)(B). (Id. at 38-42) The IJ further indicated that because of Diaz's criminal history, the IJ, in his discretion, would not have granted a waiver in any event. (Id. at 41)
With new counsel, Diaz appealed the IJ's decision to the BIA, which affirmed. (Id. at 2-3) On September 2, 1997, Diaz filed the instant petition. The parties subsequently stipulated to the removal of this case from active consideration by this court, pending the Second Circuit's issuance of its mandate in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, 119 S.Ct. 1141 (1999). The Circuit did so on June 17, 1999. Diaz then requested that his petition be restored to this court's active docket, which occurred by order dated August 2, 1999. Thereafter, the INS filed its opposition to the petition.
II.
Diaz challenges the order of deportation on several grounds, but his arguments center principally on one claim — namely, that the INS failed to establish that his criminal conduct occurred within five years of his entry into the United States, as required under 8 U.S.C. § 1251. Diaz insists that he did not, in fact, commit the offense within five years and that the INS's evidence was insufficient to prove that he did.
As the INS points out, however, Diaz's arguments are unavailing because Diaz's counsel explicitly conceded deportability during the deportation proceedings. "Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission." Ali v. Reno, 22 F.3d 442, 446 (2d Cir. 1994) (parentheses, internal quotation marks, and citation omitted); see also Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880) ("[t]he power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced"); 4 John Henry Wigmore, Evidence in Trials at Common Law § 1063, at 67 (Chadbourn rev. 1972) ("[t]he concessions of attorneys of record bind their clients in all matters relating to the trial and progress of the cause") (quoting Truby v. Seybert, 12 Pa. 101, 105 (1849)) (internal quotation marks omitted); 31 Michael H. Graham, Federal Practice and Procedure § 6726, at 227-31 (interim ed. 1992) ("[u]nequivocal admissions made by counsel during the course of trial are judicial admissions binding on his client" and "may not be controverted at trial or on appeal"; "[i]ncluded within this category are . . . admissions in open court"); 2 John W. Strong, McCormick on Evidence § 254, at 138 (5th ed. 1999) ("a judicial admission, unless allowed by the court to be withdrawn, is conclusive in the case"). This is so in the deportation context as it is elsewhere. See Ali, 22 F.3d at 446 (quotingIn re Velasaqez, 19 I. N. Dec. 377, 382, 1986 WL 67716 (BIA 1986)); LeTourneur v. INS, 538 F.2d 1368, 1371 (9th Cir. 1976) (holding alien bound by counsel's concession as to deportability); Velasquez, 19 I. N. Dec. at 382 (same).
Although Diaz names both Attorney General Janet Reno and the INS as respondents, the petition makes no factual allegations as to Reno. I therefore refer only to the INS.
Just as in Ali, Velasquez, and LeTourneur, where courts deemed aliens bound by their attorneys' admissions, so too, here, Diaz cannot escape the consequences of his attorney's admission as to his deportability. After Diaz obtained counsel, his deportation proceeding went forward on May 13, 1994, and the IJ asked how Diaz wished to plead. (Patel Decl. Ex. A at 51) Maria Liz, Diaz's attorney, unambiguously conceded the INS's charge of deportability: "Well, to the allegations, I concede deportability." (Id.)
Diaz, through counsel, reaffirmed this admission on two subsequent occasions. First, on June 15, 1994, when the hearing reconvened in New York after a change of venue, the IJ began by reciting that at a prior session "deportability [had been] conceded as charged." (Id. at 55) The IJ inquired whether his recitation was correct, and Liz answered that it was. (Id.) The hearing later resumed on January 17, 1995, at which time Diaz was represented by another attorney from Liz's law firm, Andrew Friedman. (Id. at 63) The IJ again recited that during earlier proceedings "the allegations contained [in the Order to Show Cause] were admitted and deportability was conceded" and again questioned, "Do you wish to stand by those admissions and concessions." (Id.) Friedman replied, "Yes, Judge." (Id.) Diaz thus expressly conceded his deportability through counsel and ratified the admission on two additional occasions. He may not now escape the force of this repeated admission.
Unwilling to acknowledge the effect of his admission, Diaz insists that he is not bound by his former attorney's concession of deportability for what boil down to two main reasons. First, Diaz suggests that his admission "merely created a presumption that [he] was deportable," and thus the admission was susceptible to being negated by other evidence. (Pet. Mem. Supp. at 8) This argument entirely misses the stark point that a presumption is subject to contradiction through the presentation of additional evidence, but a judicial admission is not. The significance of a judicial admission is precisely that it "`ha[s] the effect of withdrawing a fact from contention.'" Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995) (quoting Graham, supra, at § 6726). Diaz's admission that he was deportable removed the question of deportability from the issues that might be contested at his hearing. Accordingly, by Diaz's own doing his deportability was not subject to contradiction. Moreover, as described more extensively below, even if Diaz's admission had created only a presumption of his deportability, Diaz did not successfully rebut this presumption.
Second, Diaz claims that the cases cited by the INS are inapposite. (Pet. Rep. Mem. at 11-14) Diaz argues that in Ali,Velasquez, and LeTourneur, the alien "did not present any evidence that the admission of his attorney was untrue or incorrect." (Id. at 13) Here, in contrast, Diaz contends that the evidence shows that the concessions of deportability made by his counsel were "clearly erroneous" (id. at 12), and, moreover, that Diaz "nullified" the admission by offering testimony inconsistent with the admission during the proceeding. (Id. at 14-15) (quoting statement at hearing by Diaz that his involvement in welfare-fraud scheme ran from "[t]he ending of 1987 until 1990") Therefore, according to Diaz, in the face of evidence revealing that he was not subject to deportation, his attorney's concession of deportability — and the IJ's acceptance of the concession — was "egregious." (Id. at 12)
Even assuming that clear error could constitute the type of egregiousness that might warrant releasing a client from his attorney's admission, Diaz's argument is still unconvincing because, as explained more fully below, the concession made by Diaz's counsel was not "clearly erroneous."
The statute under which the INS has charged Diaz with deportation provides:
Any alien who — (I) is convicted of a crime involving moral turpitude committed within five years after the date of entry, and (II) either is sentenced to confinement or is confined therefor in a prison or correctional institution for one year or longer, is deportable.8 U.S.C. § 1251 (1994). It is undisputed that Diaz, an alien, was convicted of a crime involving moral turpitude for which a sentence of confinement for one year was imposed. The question raised by Diaz is whether his conviction was for a crime committed within five years after the date of his entry into the United States. The parties agree that Diaz's entry occurred on January 1, 1981 (Pet. ¶ 6; Def. Mem. at 2), and that the five-year period therefore would have ended on December 31, 1985. The INS, in turn, points to the language of the indictment dating Diaz's crimes back to 1985 and argues that "during his plea allocution [Diaz] admitted his guilt to this single-count indictment" and thus to having committed a crime in 1985. (Def. Mem. at 11) Diaz, however, maintains that his guilty plea by no means bound him to the details of the indictment. (Pet. Rep. Mem. at 10)
The current version of subsection (II) has been amended to provide that an alien convicted of a crime involving moral turpitude committed within five years of entering the United States is deportable if "a sentence of one year or longer may be imposed." 8 U.S.C. § 1227(a)(2)(A)(i) (Supp. II 1996) (emphasis added). The amended statute applies to deportation proceedings commenced after April 24, 1996, and therefore does not govern Diaz's petition.
The Second Circuit long ago held that, "[b]y pleading guilty [a defendant] admitted all the facts alleged in the information and waived all non-jurisdictional defects and defenses." United States ex rel. Boucher v. Reincke, 341 F.2d 977, 980 (2d Cir. 1965) (citations omitted); see also United States v. Whittaker, 999 F.2d 38, 42 (2d Cir. 1993) (finding that guilty plea constituted admission of "the underlying facts as presented by the government at the time of his plea," including the date of the offense as charged in the indictment) (internal quotation marks and citations omitted). This view is in accord with cases holding that by pleading guilty, a defendant "was admitting to all the facts in the indictment." United States v. Tolson, 988 F.2d 1494, 1501 (7th Cir. 1993); accord United States v. Morrison, 938 F.2d 168, 171 (10th Cir. 1991) ("[b]y pleading guilty, defendant admitted that he committed the offense charged, namely, a mail fraud scheme ending in October 1987"); United States v. Henson, 848 F.2d 1374, 1385 (6th Cir. 1988) ("[a] jury's verdict represents a finding that a crime was committed as alleged in the indictment, which means in this case `[o]n or about and between January 1, 1983, up to and including January 1, 1985'") (second bracket in original) (citation omitted); but see United States v. Cazares, 121 F.3d 1241, 1248 (9th Cir. 1997) (holding that guilty plea was only "an admission of the facts essential to the validity of the conviction")
Diaz, by his guilty plea, admitted all of the facts alleged in the indictment, and thus admitted committing a crime within five years of his entry into the United States in 1981.See Reincke, 341 F.2d at 980. As the INS points out, the indictment charged Diaz with participating in a welfare fraud scheme from approximately March 1985 to May 1992. (Pet. Mem. Supp. Ex. 2) The magistrate judge conducting Diaz's plea allocution referred twice to the dates when the indictment alleged the conduct transpired, and Diaz expressed his understanding of the charge. (Id. Ex. 1 at 10, 18) The pre-sentence likewise related that the earliest record of Diaz's involvement dated back to 1985. (Id. Ex. 5 at 11) Thus, his counsel's concession of deportability was not "clearly erroneous"; to the contrary, it was well-supported.
At one point during the allocution, Diaz described some of his actions as having taken place "in 1987 or 1988, more or less around there, I don't have the exact date." (Pet. Mem. Supp. Ex. 1 at 25) Diaz appears to have been referring to his role in providing transportation to participants in the scheme (id. at 12), though his production of fraudulent documents apparently predated his driving the "getaway taxi."
That the presentence report dates Diaz's involvement back to July 1985 rather than, as charged in the indictment, March 1985, hardly undermines the conclusion that the record of conviction dates back to 1985. Indeed, a deviation of this degree vindicates the indictment's reference to the dates charged as "approximate." (Pet. Mem. Supp. Ex. 2)
In support of his claim that the evidence affirmatively shows that he did not commit the offense at issue within five years of his entry into the United States, Diaz musters three principal pieces of evidence. First, he relies on Magistrate Judge Go's statement during his plea allocution in which the judge explained that his offense "was committed after November 1, 1987." (Pet. Mem. Supp. Ex. 1 at 19) This statement, maintains Diaz, constitutes a finding by the judge that Diaz's plea covered conduct after November 1, 1987 only — that is, not as far back as 1985. (Id. at 6; Pet. Rep. Mem. at 6) Second, Diaz argues that his final judgment of conviction likewise supports the notion that his guilty plea encompassed conduct occurring after November 1, 1987 exclusively. (Id. at 7) As Diaz points out, the heading of the document embodying the judgment reads: "JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987)." (Pet. Rep. Mem. Ex. 1) And third, he points out that his plea agreement barred the U.S. Attorney's Office from bringing charges against him "for his heretofore disclosed participation in criminal activity involving welfare fraud from the period 1987 to the present." (Pet. Mem. Supp. Ex. 3 at 3) (emphasis added) The agreement thus did not identify Diaz's criminal conduct as extending back to 1985. (Id. at 9; Pet. Rep. Mem. at 6-7)
Diaz also adds four arguments challenging the INS's reliance on the indictment. First, Diaz argues that the an indictment, by its very nature as a charging instrument, cannot constitute proof of his ultimate conviction. (Pet. Rep. Mem. at 8-9) Second, Diaz stresses that the language of the indictment concerning the time frame of the alleged offenses reads, "[i]n or about and between March 1985 and May 1992, both dates being approximate and inclusive." (Pet. Mem. Supp. Ex. 2) The use of the term, "in or about," and of the explicit qualifier, "both dates being approximate," cannot satisfy the INS's burden to demonstrate Diaz's deportability by clear, convincing, and equivocal evidence. (Id. at 8-9; Pet. Rep. Mem. at 10) Third, Diaz suggests that the indictment was superseded by his plea agreement with the government, as further demonstrated by the judgment's reference to his having pleaded guilty to count "1 OF THE INFORMATION" rather than count one of the "indictment." (Id.) (emphasis added) And fourth, Diaz maintains that as a legal matter the IJ's determination should have been made on the basis of the official record — particularly the ultimate judgment in the case, which, as described above, Diaz believes limited his conviction to acts that occurred after November 1, 1987. (Id. at 10-11)
But Diaz's attempts to undermine the IJ's finding that Diaz committed a crime within five years of his entry to the United States are unavailing. First, Diaz's reliance on Magistrate Judge Go's statement during the plea allocution, that Diaz's offense "was committed after November 1, 1987," borders on the frivolous. The statement reads in full: "Since your offense was committed after November 1, 1987, your sentence will be determined under the sentencing guidelines issued by the Sentencing Commission." (Pet. Mem. Supp. Ex. 1 at 19) The statement is a plain reference to the familiar principle that defendants convicted of so-called "straddle crimes" — offenses begun before November 1, 1987, the date the Sentencing Guidelines went into effect, and continuing after that date — are to be sentenced in accordance with the Guidelines. See United States v. Story, 891 F.2d 988, 991-95 (2d Cir. 1989); see also United States v. Thomas, 895 F.2d 51, 57 (1st Cir. 1990); United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir. 1989); United States v.Sheffer, 896 F.2d 842, 844-45 (4th Cir. 1990); United States v.Van Nymegen, 910 F.2d 164, 166 (5th Cir. 1990) (per curiam);United States v. Sloman, 909 F.2d 176, 182-83 (6th Cir. 1990);United States v. McKenzie, 922 F.2d 1323, 1328 (7th Cir. 1991);United States v. Tharp, 892 F.2d 691, 693-95 (8th Cir. 1989);United States v. Kohl, 972 F.2d 294, 297-98 (9th Cir. 1992);United States v. Williams, 897 F.2d 1034, 1040 (10th Cir. 1990);United States v. Terzado-Madruga, 897 F.2d 1099, 1123 (11th Cir. 1990). Magistrate Judge Go's statement was not a finding that Diaz did not commit a crime in 1985.
The same, of course, can be said for Diaz's reliance on the formal judgment of conviction, which identifies Diaz's guilty plea as being for "Offenses Committed On or After November 1, 1987." (Pet. Rep. Mem. Ex. 1) This, too, demonstrates only that Diaz was convicted for an offense that included conduct after November 1, 1987, but not that his crime involved no conduct before that date.
The only serious piece of evidence to which Diaz points is his plea agreement, in which the government committed not to charge him "for his heretofore disclosed participation in criminal activity involving welfare fraud from the period 1987 to the present." (Pet. Mem. Supp. Ex. 3 at 3) But this, too, does not affirmatively establish that Diaz was not convicted of a crime committed within five years of his entry into the country. Indeed, the plea agreement is silent as to whether Diaz committed a crime between 1981 and 1985. Rather, it shows only that Diaz made an agreement with the government. At Diaz's plea allocution, the judge specifically recited the terms of the indictment, not those of the plea agreement. If Diaz had wished to limit his plea to the terms of his plea agreement with the government, it was his obligation (on his own or through counsel) to make that clear to the judge taking his plea. Cf. United States v. Silvers, 84 F.3d 1317, 1319-21 (10th Cir. 1996) (holding that defendant who pleaded guilty in narcotics distribution case not bound as to amount of drugs charged in indictment where the defendant specifically reserved the issue of quantity during his plea allocution).
Further, Diaz's argument that the indictment, as a charging document, is not reliable and that only the ultimate judgment of conviction should control cannot be sustained. Rather, the indictment, the plea allocution — including its references to the indictment — as well as the judgment and the sentence, all comprise Diaz's "record of conviction." See, e.g.,Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996) ("immigration officers and courts, while precluded from considering the [underlying] evidence, may examine the `record of conviction.' (including the indictment or information, plea, verdict or judgment and sentence) to determine the crime of which the alien actually was convicted"). The IJ considered Diaz's entire record of conviction, including the indictment and the plea, before ruling that Diaz is deportable.
Furthermore, as mentioned above, the indictment's language does not undermine the finding that Diaz was convicted of a crime committed in 1985. There is no evidence in the record supporting Diaz's claim that the indictment was superseded by some other document — evidence Diaz surely could have been expected to produce if it existed.
Finally, to the extent that Diaz suggests that other evidence conflicts with the record of conviction, "[i]t is `elementary' . . . that in a deportation proceeding [a court] cannot go behind a guilty plea to try the case anew." Lennon v. INS, 527 F.2d 187, 194 n. 16 (2d Cir. 1975); see also generally Matter of Ozkok, 19 I. N. Dec. 546, 1988 WL 235459 (BIA 1988). Thus, the record of Diaz's conviction, upon which the IJ rationally based his decision, must control, and none of Diaz's suggestions call into question the finding that Diaz was convicted of a crime committed within five years of his entry into the United States. Accordingly, his counsel's concession of deportability was by no means "clearly erroneous."
III.
Diaz also claims that his former attorneys provided ineffective assistance by conceding deportability, and he asks that he "not be punished for the shortcomings and clear incompetence of his former counsel." (Pet. Mem. Supp. at 16) But as the foregoing illustrates, there is no merit to this claim. Most fundamentally, the concession was well-grounded. Moreover, this result is consistent with other cases holding that attorneys' concessions of deportability did not to amount to ineffective assistance of counsel. See, e.g., Ramirez-Durazo v.INS, 794 F.2d 491, 500 (9th Cir. 1986); Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986); Pilapil v. INS, 424 F.2d 6, 10 (10th Cir. 1970). As one court explained, "the Supreme Court inFoti [v. INS, 375 U.S. 217, 227 n. 13 (1963)] recognized `deportability is conceded in about 80% of the cases.' It is therefore evident that the strategy of the petitioner's counsel in representing his client places him with the great majority of experienced representatives." Pilapil, 424 F.2d at 10. It apparently is common for counsel to concede deportability and then seek asylum, a discretionary waiver under section 212(c) of the INA, or a voluntary departure in lieu of enforced deportation. But "[t]his sort of tactical decision, even if in hindsight unwise, does not constitute ineffective assistance."Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981).
Diaz also contended in his initial memorandum of law of November 21, 1997, that his former attorney likewise provided ineffective assistance by failing to advise Diaz of the potential for discretionary relief from deportation under section 212(c) of the INA and, moreover, that the IJ himself erred by failing to so advise him. (Pet. Mem. Supp. at 14-16) However, in his reply memorandum, Diaz rests entirely on his argument that deportability was not established, and abandons the section 212(c) theory, conceding, as the BIA determined, that he had not made a prima facie showing of eligibility for relief under section 212(c). (Pet. Rep. Mem. at 18) In response to the INS's indication that it does not oppose a remand on the issue of ineffective assistance as to section 212(c) (Def. Mem. at 12-13), Diaz concedes the argument's lack of merit:
The BIA clearly held that Mr. Diaz was not eligible for a § 212(c) waiver. Having so found, the BIA did not have to address Mr. Diaz's ineffective assistance of counsel claim relating to § 212(c) relief, because failure to advise a client about relief for which the client is not eligible does not constitute ineffective assistance of counsel.
(Pet. Rep. Mem. at 18) Diaz is correct that an ineffective assistance argument cannot stand when the underlying claim is meritless. See, e.g., Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (in order to demonstrate ineffective assistance of counsel at deportation hearing, alien must show, inter alia, "that he was prejudiced by his counsel's performance") (internal quotation marks and citation omitted). Diaz cannot have suffered prejudice from counsel's failure to seek relief to which Diaz now concedes he was not entitled.
IV.
Finally, Diaz in his petition separately argues that the government violated the Fifth Amendment's due process guarantee by failing to provide him with adequate notice before subjecting him to deportation. (Pet. ¶¶ 23-25) He alleges a violation of a claimed constitutional right to be told (1) the conditions under which he would be permitted to reside permanently in the United States, (2) the conditions under which he would be subject to deportation, and (3) the reality that criminal activity would subject him to these penalties. (Id.)
After raising this argument in his petition, Diaz did not brief the issue pending the Second Circuit's decision in another case raising the same claim. (Pet. Mem. Supp. at 2 n. 1) However, Diaz did not address it even after the decision in that case was rendered. See Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998) (affirming on procedural grounds and not reaching the issue). Therefore, I take it to have been abandoned. In any event, I agree with the District Court's conclusion in Jean-Baptiste that even assuming that the Constitution did impose a duty to inform legal permanent residents that criminal convictions could result in deportation, the INA itself satisfies this requirement. See Jean-Baptiste v. Reno, No. 96 CV 4077 (SJ), 1997 WL 55472, at *4 (E.D.N.Y. Feb. 5, 1997), aff'd onother grounds, 144 F.3d 212 (2d Cir. 1998). As the Court explained, "`everyone is charged with knowledge of the United States Statutes at Large,'" id. (quoting Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947)), and Diaz is no different.
In reviewing the INS's ruling, a court is "obliged to uphold the INS's decision unless it is an abuse of discretion," and "need only decide whether or not the INS considered the appropriate factors and came to a decision that has any rational basis." Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir. 1993) (citations omitted). Moreover, "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron. U.S.A., Inc. v.National Resources Defense Counsel. Inc., 467 U.S. 837, 844 (1984). Because the INS evaluated the relevant considerations and reached a well-founded decision, it did not abuse its discretion and Diaz's arguments therefore fail.
* * *
For the foregoing reasons, the writ is denied and the petition is dismissed. Because Diaz's petition presents no issue deserving of appellate review, no certificate of appealability will issue. See 28 U.S.C. § 2253 (c) (Supp. II 1996).
SO ORDERED:
Dated: New York, New York Michael B. Mukasey, April 18, 2000 U.S. District Judge