Afanwi v. Mukasey (5/19/08)

ELLIS (DistCt), Williams, Duncan

The Petitioner filed a late Petition for Review, after his previous atty failed to check his mailbox in time for a Petition for Review to be filed - Petitioner also filed a Lozada mtn to reopen, but the Board refused to reopen and reissue, finding post-BIA decision atty malfeasance beyond its realm. The CtApp found (a) that the late-filed PfR was untimely, (b) that there was no harm in the address the Board used, (c) that the Board had no obligation to reissue an opinion where it hadn't made a mistake, and (d) that police visit to house in Cameroon did not create reasonable fear.  The CtApp also agreed with Board that it had no authority to consider atty incompetence post-BIA decision. However, based on the "zipper clause" of 1252(b)(9), it found that it (the CtApp) had jurisdiction to consider the ineffective assistance.  But it held that there is no constitutional right to an administrative remedy for ineffective assistance:

It is a basic principle of American constitutional law that * * * the Constitution applies only to the federal government which it creates and, via the Fourteenth Amendment and certain other clauses, to the governments of the several states. The Supreme Court long ago held that the rights guaranteed by the Constitution "cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." It follows that an alien’s counsel cannot violate his client’s Fifth Amendment rights unless he can be said to be engaging in state action. * * *

Simply put, Afanwi’s counsel was not a state actor, nor is there a sufficient nexus between the federal government and counsel’s ineffectiveness such that the latter may fairly be treated as a governmental action. To the contrary, Afanwi’s counsel was privately retained pursuant to 8 U.S.C. § 1362, and his alleged ineffectiveness — namely his failure to check his mailbox regularly and to file a timely appeal — was a purely private act. The federal government was under no obligation to provide Afanwi with legal representation,46 and there was no connection between the federal government and counsel’s failure to check his mail. Thus, Afanwi’s counsel’s actions do not implicate the Fifth Amendment, and accordingly counsel’s alleged ineffectiveness did not deprive Afanwi of due process.

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