Contreras v. Attorney General of United States
2012 U.S. App. LEXIS 56
| 3rd Cir. | 2012Background
- Contreras and Norma Contreras, Mexican nationals, entered unlawfully in 1993 and 1998 and sought employment-based permanent residency under §1255(i).
- Margarito’s labor certification was filed by his employer in April 2001 and approved only in August 2006 after a lengthy delay.
- A visa petition (I-140) was filed January 2007 and denied November 2007 for employer’s inability to pay the proffered wage; no timely appeal was filed.
- Mella, the former attorney, collected $1,000 for a motion to reopen but instead filed an untimely March 2008 motion to reconsider; he later caused removal-related representations that misled the IJ.
- Removal proceedings began January 2008; multiple continuances and voluntary departure were considered; a motion to reopen based on ineffective assistance was denied by the IJ and affirmed by the BIA.
- The Third Circuit denied the petition for review, holding the Fifth Amendment does not guarantee effective assistance of counsel before removal proceedings, and that pre-proceeding ineffectiveness does not render the removal process fundamentally unfair.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Fifth Amendment due process guarantee effective counsel for pre-removal visa petitions? | Contreras argues pre-proceeding counsel was ineffective and prejudicial. | Government asserts such pre-proceeding ineffectiveness is not within due process reach. | No Fifth Amendment right to effective pre-proceeding counsel. |
| Can pre-proceeding ineffective assistance support reopening/remand of removal proceedings? | Ineffectiveness before proceedings warrants relief. | Relief limited; no remedy for pre-proceeding misconduct. | Pre-proceeding ineffectiveness does not mandate reopening. |
| Was there ineffective assistance during removal proceedings? | Counsel misled IJ and failed to seek timely relief. | BIA properly found no substantial prejudice or unfairness in removal hearing. | No reversible ineffective assistance during removal proceedings. |
| Should continuance denial be re-evaluated because of prior counsel’s incompetence? | Counsel's failures justify extending proceedings. | IJ’s discretion to deny continuances was reasonable. | Continued reliance on IJ discretion; no due-process-based remedy. |
| Does Lozada framework apply to pre-proceeding ineffective-assistance claims? | Lozada requirements support pre-proceeding claims. | Lozada primarily governs post hoc collateral claims. | Lozada framework not applicable to pre-proceeding claims. |
Key Cases Cited
- Khan v. Att'y Gen., 448 F.3d 226 (3d Cir. 2006) (due-process challenge to ineffective assistance in removal proceedings; framework cited)
- Fadiga v. Att'y Gen., 488 F.3d 142 (3d Cir. 2007) (two-part test for ineffective assistance with prejudice)
- Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008) (pre-proceeding ineffectiveness not extending Fifth Amendment rights)
- Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004) (pre-removal advice not tainting fairness of removal hearing)
- Xu Yong Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) (due process standard for right to effective counsel in removal)
- Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001) (three requirements for fair removal proceedings and counsel involvement)