Opinion
02-CV-0509E(Sc)
March 24, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner filed this petition for habeas corpus relief alleging that he has been unlawfully detained by the respondents. Respondents filed a September 13, 2002 motion to dismiss the petition pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). This action was subsequently referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition of the case. Judge Scott issued a September 23, 2003 Report and Recommendation ("the RR") recommending that respondent's motion to dismiss be granted in part and denied in part. Petitioner timely filed Objections to the RR.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. On December 11, 2001 the United States Immigration Court ordered the petitioner to be removed from the United States based on two previous criminal convictions. Petitioner contends, in support of his habeas petition, that he was deprived of his constitutional right to effective assistance of counsel during the Immigration Court proceedings inasmuch as his counsel had failed to apply for a waiver of deportability on his behalf. Respondents move to dismiss the petition arguing that (1) this Court lacks subject matter jurisdiction because petitioner failed to exhaust his administrative remedies and (2) petitioner has failed to state a claim upon which relief may be granted.
A more detailed recitation of the facts and procedural history in this case is set out in the RR.
Petitioner asserts that he was eligible for a waiver of deportability under two statutory provisions — to wit, section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), and 8 U.S.C. § 1229b(a). Although section 212(c) of the INA was repealed by Congress in 1996, it nonetheless remains applicable to aliens whose convictions were obtained before such repeal. See I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001).
Judge Scott recommended that respondent's motion to dismiss be denied with regard to the exhaustion issue but that the motion otherwise be granted because of petitioner's failure to allege a prima facie case of ineffective assistance of counsel. Judge Scott based his recommendation on the fact that petitioner had not complied with the applicable requirements regarding presentation of such a claim as set forth in In re Lozada, 19 I. N. Dec. 637, 639 (BIA), petition for review denied, 857 F.2d 10 (1st Cir. 1988).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C). It is entirely within the province of this Court to adopt the portions of the RR to which no specific objection has been raised. See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the RR to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).
A petitioner who asserts an ineffective assistance of counsel claim must submit
"(1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so." Esposito v. I.N.S., 987 F.2d 108, 110-111 (2d Cir. 1993) (citing Lozada, at 639).
Petitioner does not object to the fact that he has not complied with the applicable Lozada requirements. Rather, petitioner objects to Judge Scott's RR by arguing that this Court should disregard such requirements based on the circumstances of this case. While courts generally require a petitioner who asserts an ineffective assistance of counsel claim during an immigration proceeding to comply with the Lozada requirements, such requirements are not "sacrosanct." Castillo-Perez v. I.N.S., 212 F.3d 518, 525 (9th Cir. 2000). If, for example, the record reveals that it would be unnecessary for petitioner to have filed a formal disciplinary complaint against his attorney who represented him during the immigration proceedings, then strict compliance with Lozada is excused. See Esposito, at 111 (addressing petitioner's claim of ineffective assistance of counsel because, inter alia, he had provided a reasonable explanation in his affidavit for not filing a disciplinary complaint); see also Paljusaj v. Ashcroft, 2003 WL 941662, at *5 (S.D.N.Y. 2003) (same). In addition, courts have dispensed with strict adherence to the Lozada requirements in cases where the facts of the administrative record revealed that a petitioner had a substantial claim that he was denied effective assistance of counsel. Castillo-Perez, at 525-526; see also Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001) (addressing the merits of petitioner's ineffective assistance of counsel claim despite his noncompliance with Lozada because he was threatened with immediate deportation and because he had had a pending motion to reopen with the BIA for more than three years). Petitioner contends that this Court should reach the merits of his claim despite his noncompliance with Lozada because (1) he faces immediate deportation if his petition is dismissed and (2) he has clearly set forth both the reasons why he was eligible for a waiver of deportability and why his former counsel's failure to apply for such a waiver constitutes ineffective assistance of counsel. Petitioner alternatively requests an opportunity to submit an affidavit in compliance with Lozada. The Court will not simply allow petitioner to flout the applicable procedural requirements in the absence of any explanation why he failed to submit an affidavit to this Court in compliance with Lozada. Nevertheless, the Court is mindful of the fact that, accepting the material facts as alleged in his petition, petitioner has set forth a cognizable claim based on ineffective assistance of counsel. See Rabiu v. I.N.S., 41 F.3d 879, 883 (2d Cir. 1994) (holding that the failure of the petitioner's attorney to timely file a section 212(c) application for waiver of deportation constituted ineffective assistance of counsel in violation of his due process rights). Thus, considering both the fact that petitioner is facing imminent deportation if his petition is dismissed and that his petition sets forth sufficient facts to support a constitutional violation, the Court will grant petitioner's request to allow him the opportunity to submit the required affidavit. Such a ruling will prevent petitioner's deportation without giving him an opportunity to both fully develop the administrative record and present the merits of his alleged constitutional violation.
In his Objections, petitioner states: "At the present time, counsel for the Petitioner is in the early stage of seeking to comply with the Lozada requirements as set forth in Magistrate [Judge Scott's] Report and Recommendation, so that the merits can be reached." Pet's Objs., at 4.
See supra note 3.
Accordingly, it is hereby ORDERED that Magistrate Judge Scott's RR is adopted and modified in accordance with this Memorandum and Order, that respondents' motion to dismiss the petition is granted, that the petition is dismissed without prejudice, that petitioner shall have 60 days from the date of entry of this Order to file an amended petition and an affidavit in accordance with Judge Scott's RR and this Memorandum and Order, that failure to do so within the 60 days shall result in dismissal of the petition with prejudice and the closing of this case and that the August 27, 2002 Order staying petitioner's removal remains in effect pending resolution of this case.