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HomeSeventh Circuit Posner on IAC, DP for discretionary relief, questions of law v const qs
Posner on IAC, DP for discretionary relief, questions of law v const qs
Friday, 12 September 2008
Jezierski v. Mukasey (9th Cir. 9/10/08)
POSNER Manion Coffey
Petitioner's former counsel failed to file a brief, she filed a Lozada mtn to reopen, the Board denied for lack of prejudice (finding that case would turn out the same even if he had filed a brief).
In the 7th cir, per Kucana and progency, 1252(a)(2)(B)(ii) applies to mtns to reopen, since they're discretionary - so there's no jurisdiction over the mtn except to the extent that it raises a question of law or constitutional question.
1. While there is no statutory right to effective representation, if BIA has rule permitting reopening for IAC, failure to follow rule could be question of law.
No statute entitles the alien to effective assistance of counsel, Stroe v. INS, supra, 256 F.3d at 499-500 (7th Cir. 2001); Afanwi v. Mukasey, 526 F.3d 788, 796 (4th Cir. 2008), although he is allowed to have counsel at his own expense. 8 U.S.C. § 1362. The Sixth Amendment is inapplicable to removal proceedings. Gjeci v. Gonzales, 451 F.3d 416, 421 (7th Cir. 2006); Stroe v. INS, supra, 256 F.3d at 500; Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008); Afanwi v. Mukasey, supra, 526 F.3d at 796-97; Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); cf. Coleman v. Thompson, 501 U.S. 722, 752-54 (1991); Wainwright v. Torna, 455 U.S. 586, 587-99 (1982). And no statute or constitutional provision entitles an alien who has been denied effective assistance of counsel in his (in this case her) removal proceeding to reopen the proceeding on the basis of that denial. Stroe v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, Nos. 07-1317, 07-2406, 2008 U.S. App. LEXIS 16537, at *19-20 (8th Cir. Aug. 5, 2008). Nevertheless, if the Board of Immigration Appeals adopted a rule entitling such an alien to reopen, its failure to follow the rule in a particular case would present a question of law. Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008); cf. Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008).
2. But because Lozada doesn't *require* reopening where ineffective assistance is shown, but only *permits* it, the Board's ultimate decision remains discretionary, and the only review is of a question of law or constitutional question.
3. CtApp suggests could be a constitutional claim raised where case was so complicated that without counsel, the alien couldn't present the case.
The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due process of law by preventing him from “reasonably presenting his case.” Henry v. INS, 8 F.3d 426, 440 (7th Cir. 1993); Kay v. Ashcroft, supra, 387 F.3d at 676; Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008); Aris v. Mukasey, supra, 517 F.3d at 600; see also Monjaraz- Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003). An alien resisting removal, which would deprive him of his liberty to remain in the United States, is entitled to due process, Reno v. Flores, 507 U.S. 292, 306 (1993); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903); Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008); Torres v. INS, 144 F.3d 472, 474 (7th Cir. 1998), which comprehends the right to present a defense. Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775- 76 (7th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539-40 (7th Cir. 2005).
4. CtApp backtracks from prior suggestion that discretionary relief means no due process rights whatsoever.
Yet some cases say that if the alien is seeking merely discretionary relief he has no entitlement to remain in the United States and therefore a denial of relief does not invade his liberty. E.g., Nativi-Gomez v. Ashcroft, supra, 344 F.3d at 807; Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999). The other cases that we have cited do not recognize the distinction, however, and to do so would be cutting things too fine. It is true that in Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), we said that while “Cevilla has a liberty interest in remaining in the United States, . . . prevailing on the issue of continuous physical presence in the United States would not give her any right to remain here. It would merely give her an opportunity to establish extreme hardship, which is an appeal to the government’s discretion, rather than a substantive entitlement.” But there is a difference between an issue and a remedy. Having created a reopening remedy that can defeat removal, the government cannot be allowed to destroy the remedy and so ensure removal by creating procedural roadblocks that prevent the alien from invoking the procedure. That would be a deprivation of liberty without due process of law, and therefore judicially reviewable even if the petition for review did not present a question of law but merely a question of fact (such as whether a notice of hearing had been sent to the alien), because the statute governing judicial review of rulings by the Board of Immigration Appeals allows review of a discretionary ruling that is claimed to deny a constitutional right. 8 U.S.C. § 1252(a)(2)(D); Kucana v. Mukasey, supra, 533 F.3d at 538.
5. But no constitutional error argued here, so CtApp doesn't have any jurisdiction over finding of no prejudice, except to the extent it presents a question of law.
6. Petitioner argued that failure to file a brief creates a presumption of prejudice - but CtApp rejects that - at least here, where Board considered the claim on the merits notwithstanding counsel's failure to file a brief. Contra Granados-Oseguera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000).
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