1 Cir: Rejects Padilla claim where underlying conviction not challenged

By University of Denver Sturm College of Law

Feb 28, 2012

The U.S. Court of Appeals rejected a Padilla-based challenge to a removal order because the noncitizen had not challenged the underlying criminal conviction in the proper state court. Matos-Santana v. Holder, No. 10-2373, slip op. (1st Cir. Nov. 2, 2011) (Howard, Ripple, and Selya, JJ.). Judge Selya wrote the panel’s decision.

This case involved an LPR who was convicted by guilty plea of New York robbery in the second degree, N.Y. Penal Law § 160.10, and auto stripping in the third degree, N.Y. Penal Law § 165.09. Removal proceedings were initiated when he traveled abroad and returned to the United States. Matos-Santana, No. 10-2373, slip op. at 2-3. He was ordered removed and actually removed on February 11, 2004. Matos-Santana, No. 10-2373, slip op. at 4. He remains in the Dominican Republic. Matos-Santana, No. 10-2373, slip op. at 4.

He now claims that he is eligible for relief under former INA § 212(c) because, he argues, “Padilla mandated vacation of his auto-stripping conviction” because “his defense counsel in the auto-stripping prosecution had erroneously advised him that a guilty plea would carry no adverse deportation consequences.” Matos-Santana, No. 10-2373, slip op. at 4-5.

The BIA denied a motion to reopen asserting this for two reasons: because, it claimed, it lacks jurisdiction to consider his motion because he filed his motion after departing the United States (the post-departure bar) and because it was untimely (INA § 240(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2) provide up to 90 days for filing a motion to reopen). Matos-Santana, No. 10-2373, slip op. at 5.

“Relatedly, the BIA observed that, in the first instance, the criminal court was the appropriate venue for the petitioner’s Padilla claim and that, until the petitioner had successfully challenged the auto-stripping conviction in a court of competent jurisdiction, the BIA was obliged to regard the conviction as valid for immigration purposes.” Matos-Santana, No. 10-2373, slip op. at 5.

The First Circuit had no trouble affirming the BIA’s decision. Its decision to deny Matos-Santana’s claim because he had not challenged the conviction in the proper state court, the First Circuit explained, “seems eminently reasonable.” Matos-Santana, No. 10-2373, slip op. at 7. Moreover, the BIA’s decision to not use its sua sponte authority to review this claim “is readily understood” for much the same reason: “the petitioner’s request for an exception depended on his Padilla argument, but he had made no effort in the New York courts to set aside the auto-stripping conviction.” Matos-Santana, No. 10-2373, slip op. at 7.

Consequently, the court denied the petition for review. Matos-Santana, No. 10-2373, slip op. at 8.The message of Matos-Santana is clear: a Padilla-based claim must attack the underlying conviction in the court that entered the conviction. It is of no use to go directly to the IJ or BIA.