Opinion
Civil Action No: SA-04-CA-0862-XR.
October 12, 2004
ORDER
Before the Court are Petitioner's Original Application for Writ of Habeas Corpus, and For Preliminary and Permanent Injunction (docket nos. 1, 2, 3) and the government's Motion to Dissolve the Restraining Order And/Or Alternatively, to Dismiss (docket no. 10). Petitioner seeks to prevent his deportation from the United States. The Court granted a temporary restraining order on October 4, 2004, ordering the status quo be preserved for a period of 10 days in order to determine the merits of Petitioner's application. On October 7, the government filed its motion to dismiss. After considering the government's motion, as well as the Petitioner's application and response, the Court finds that it is without jurisdiction in this case. The government's motion is therefore GRANTED (docket no. 10) and Petitioner's application for writ of habeas corpus and for preliminary and permanent injunction is DENIED.
I. Factual and Procedural History
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, after pleading guilty, 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 haven 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.
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 had been previously convicted. 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 ("IJ") on July 25, 2002. The IJ set a date of June 24 for Petitioner to file his cancellation of removal application. An agreed motion for continuance was filed on June 20 with regard to the July 25 hearing, but was denied on July 8 by the IJ because no reason for the continuance was stated in the motion. Apparently assuming that the continuance would be granted, Petitioner's attorney failed to file the necessary cancellation of removal application. On July 19, the IJ determined that Petitioner failed to timely file an application for relief and cancelled the July 25 hearing as unnecessary. The IJ 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.
Petitioner filed a notice of appeal to the Board of Immigration Appeals (BIA) arguing that the denial of 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. The BIA dismissed the appeal and affirmed the IJ, noting that Petitioner's attorney had not sufficiently explained his reason for missing the filing deadline and that Petitioner had not complied with the BIA's requirements for raising an ineffective assistance of counsel claim set forth in Lozada v. I.N.S., 19 I N Dec. 637, aff'd 857 F.2d 10 (1st Cir. 1988).
The Lozada requirements set forth by the BIA include: (1) an affidavit by the alien setting forth the relevant facts of the alleged ineffective assistance, 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. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). Petitioner's present counsel has supplied the Court with no actual evidence that the requirements of Lozada have been met, baldly stating only that " Lozado [ sic] has been complied with." Petitioner's Application at 7. Independent investigation by the Court indicates that the requirements very well may have been complied with subsequent to the Court's Order of November 20, 2003.
On July 31, 2003, Petitioner filed an application for writ of habeas corpus in this Court. 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. Both Courts denied relief. The Fifth Circuit found that the BIA properly denied the motion to reopen because Petitioner waived the opportunity to submit his application for cancellation of removal when he missed the imposed filing deadline. Guiterrez-Morales v. Ashcroft, 96 Fed. Appx. 206, 207, 2004 WL 878484 (5th Cir. Apr. 26, 2004) (per curiam). This Court denied relief due to the fact that denial of the opportunity to seek discretionary relief does not constitute a violation of due process. This Court also noted that Petitioner had not complied the requirements of Lozada in order to raise an ineffective assistance of counsel claim, a jurisdictional prerequisite under Fifth Circuit precedent, Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2002). Gutierrez-Morales v. Homan, No. CIV.A.SA-03-CV-0736-XR, 2003 WL 22736558 (W.D. Tex. Nov. 20, 2003)
On May 1, 2004, Petitioner, acting through new counsel, filed a motion to reopen before the BIA, claiming ineffective assistance of counsel and asserting that the requirements of Lozada had been met. This motion was denied on September 1. The BIA stated that Petitioner's former counsel had raised the ineffective assistance claim previously and that the BIA had ruled on this claim in its July 21, 2003 decision, in which it found that the requirements of Lozada had not been met. The BIA denied Petitioner's motion to reopen because "[t]he claims against former counsel have thus already been presented to the Board." On September 23, Petitioner filed the instant application. Subsequently, on October 4, Petitioner filed a Petition for Review of the BIA's decision in the Fifth Circuit. The Petition for Review asserts that Petitioner was denied due process under the Fifth Amendment due to ineffective assistance of counsel and requests a stay of the deportation proceedings pending resolution of the appeal. The Petition for Review raises the exact same claims as the application before this Court.
Without deciding, the Court notes that this statement is strangely inconsistent with this Court's previous determination that Petitioner had failed to raise his ineffective assistance claim before the BIA prior to November 20, 2003. Gutierrez-Morales v. Homan, No. CIV.A.SA-03-CV-0736-XR, 2003 WL 22736558 at *5 (W.D. Tex. Nov. 20, 2003); see also Saakian v. I.N.S., 252 F.3d 21, 26 (1st Cir. 2001) (holding that the BIA's decision not to have a hearing on the merits with regard to alien's ineffective assistance claim was a violation of due process where alien had met requirements of Lozada). Given the Court's determination as to jurisdiction in this case, this matter is left for decision on Petition for Review to the Fifth Circuit.
The government asserts that this is an impermissible second habeas application. See 28 U.S.C. §§ 2244, 2255. However, as the Court dismissed Petitioner's ineffective assistance claim in the first habeas application for lack of jurisdiction, Petitioner's current application is not barred under these rules.
II. Jurisdictional Analysis
Generally, this Court would have jurisdiction to review Petitioner's application. 28 U.S.C. § 2241 grants the Court with the power to issue a writ of habeas corpus. The Supreme Court held in INS v. St. Cyr, 533 U.S. 289 (2001), that the courts retain habeas jurisdiction even under the jurisdiction-stripping provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). No word was mentioned, however, as to the extent administrative remedies must be exhausted before a district court could maintain habeas jurisdiction. That is the question presented by Petitioner's application.Petitioner has filed his Petition for Review with the Fifth Circuit asserting the exact same reasons for relief that are asserted in this action — that Petitioner received ineffective assistance of counsel in the failure to timely file an application for relief. This gives rise to a situation where this Court and the Fifth Circuit may issue competing and divergent orders with regard to the validity of Petitioner's ineffective assistance claim, both of which may be valid. Additionally, should the Fifth Circuit decide that the BIA was incorrect to overrule Petitioner's motion to reopen, Petitioner's application for habeas relief would likely be rendered moot as there would be no "final order" for this Court to review. 8 U.S.C. § 1252(d). Essentially, Petitioner is engaging in a form of forum shopping, hoping that one of the courts will rule favorably on his ineffective assistance claim, thereby forcing the IJ to reopen the case and hold a hearing as to the cancellation of his removal. Whether there is merit to Petitioner's ineffective assistance claim, the Court has no trouble in determining that the proper venue for the initial determination in this matter is on Petition for Review in the Fifth Circuit.
As noted, this is a determination best left for the Fifth Circuit on Petition for Review at this point. However, the Court notes that other courts faced with actions committed similar to those of Petitioner's former counsel have found a valid claim for ineffective assistance. See, e.g., Batista-Taveras v. Ashcroft, No. 03-CIV-1968-LAK, 2004 WL 2149095, at *5 (S.D.N.Y. Sept. 23, 2004) (holding that counsel's failure to timely file an application seeking cancellation of removal, due to counsel's assumption that a motion to transfer venue would be granted, was ineffective assistance and a violation of due process); Saakian v. I.N.S., 252 F.3d 21, 26 (1st Cir. 2001) (holding that the BIA's decision not to have a hearing on the merits with regard to alien's ineffective assistance claim was a violation of due process where alien had met requirements of Lozada); Castillo-Perez v. I.N.S., 212 F.3d 518, 520 (9th Cir. 2000) (holding that the failure to timely file an application for asylum was ineffective assistance and a violation of due process); but see Assad v. Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004) (noting that an attorney's "allegedly deficient performance [that] merely restricted [the alien's] chances of receiving a discretionary waiver of his removability" is not a violation of due process); 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).
8 U.S.C. § 1252(d) provides that
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.
In Massieu v. Reno, 91 F.3d 416, 421-22 (3rd Cir. 1996), the Third Circuit found that, under the predecessor immigration rules, exhaustion of administrative remedies through decision by the court of appeals was a prerequisite to a district court's jurisdiction. The Massieu Court noted that the Immigration and Nationality Act's comprehensive structure and legislative intent to channel and streamline the enforcement process of the nation's immigration laws established a clear intent to preclude district court review where administrative remedies had not been exhausted. Id. The Third Circuit relied on Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), which dealt with exhaustion of administrative remedies under the Mine Act, in determining the jurisdictional question. The Third Circuit revisited the Massieu case in Duvall v. Elwood, 336 F.3d 228, 231-32 (3rd Cir. 2003), and found that the rationale and holding of Massieu still applied under the IIRIRA.
Petitioner cites to Pequeno-Martinez v. Tominsk, 281 F. Supp. 2d 902 (S.D. Tex. 2003), for the proposition that exhaustion of a petition for review is not necessary. In Pequeno-Martinez, the court noted that "the Fifth Circuit [has] implied that even in a case where it had jurisdiction over claims arising from a final order of removal via a petition for review, the district court would still have jurisdiction over those same claims via a petition for habeas corpus." Id. at 911 (citing Flores-Garza v. I.N.S., 328 F.3d 797 (5th Cir. 2003)). This Court disagrees with the assessment of Flores-Garza by Pequeno-Martinez. In Flores-Garza, the Fifth Circuit found that the district court retained habeas jurisdiction over an alien where the Court of Appeals was without jurisdiction over the petition for review. Id. at 803-04. Additionally, the court in Pequeno-Martinez was not faced with a situation in which the petitioner had engaged in a situation of clear forum shopping by filing equivalent motions in the District Court and the Court of Appeals. This Court is convinced that the Fifth Circuit would not have intended its decision in Flores-Garza to be interpreted to encompass a dueling situation such as this, in which both the District Court and the Court of Appeals would have equal jurisdiction to make a determination as to Petitioner's ineffective assistance claim. Additionally, as noted above, should the Fifth Circuit determine that the BIA decision should be overturned, this Court would ultimately lack a "final order" to review.
As in Massieu and Thunder Basin, Petitioner's application must be dismissed due to the fact that Petitioner has failed to exhaust administrative remedies. As the Supreme Court put it in Thunder Basin, "petitioner's statutory and constitutional claims here can be meaningfully addressed in the Court of Appeals." Id. at 216. Allowing habeas jurisdiction here, prior to a decision by the Fifth Circuit on the Petition for Review, threatens to undermine the structure of review of immigration decisions that has been laid out by Congress and interpreted by the courts.
III. Conclusion
Petitioner's application for writ of habeas corpus must be dismissed because he has failed to exhaust his administrative remedies, and therefore the Court lacks jurisdiction. Petitioner's Petition for Review is currently pending before the United States Court of Appeals for the Fifth Circuit and addresses the same issues addressed in this application. Pursuant to 8 U.S.C. § 1252(d)(1), the Court finds that it cannot review the decision of the BIA on Petitioner's ineffective assistance of counsel claim because there is no final order to review until the Petition for Review has been resolved. Accordingly, the Court VACATES the temporary restraining order issued October 4, 2004 (docket no. 8) and GRANTS the government's motion to dismiss (docket no. 10) pursuant to 28 U.S.C. § 2255, as Petitioner's application, along with the files and records of the case conclusively show that Petitioner is entitled to no relief. Petitioner's Original Application for Writ of Habeas Corpus, and For Preliminary and Permanent Injunction (docket nos. 1, 2, 3) is DENIED in its entirety.