454 F. App'x 24
2d Cir.2012Background
- Hill, a Jamaican citizen, seeks review of a BIA decision affirming an IJ’s removal order.
- IJ denied Hill’s fourth continuance to hire counsel; prior continuances had been granted.
- Hill’s 2006 state robbery conviction was used to deem him removable; he alleges ineffective assistance of counsel on immigration consequences.
- Hill argues Padilla and related claims should affect his immigration status and potential relief.
- Court reviews only legal/constitutional challenges to removal; issues about aggravated felony determination and relief eligibility not reopened.
- Court upholds removability finding and denial of relief; no abuse of discretion in continuance denial; no relief warranted under INA or CAT/withholding; Padilla issue noted as open question for collateral review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ abused discretion by denying fourth continuance | Hill argues due process requires more time to obtain counsel | IJ had wide calendar discretion and had granted three prior continuances | No abuse of discretion |
| Whether Hill's 2006 conviction invalid due to ineffective counsel under Padilla | Padilla should affect removal and potentially collaterally attack plea | Collateral attacks on guilty pleas not available in BIA review | Agency did not err; collateral attack not allowed in this review |
| Whether Hill was eligible for relief from removal | Believes some relief could apply under various INA provisions | Hill not eligible for cancellation, adjustment, waiver, or relief due to aggravated felon status | Not eligible for relief; agency properly denied relief |
| Whether Hill qualifies for asylum/withholding/CAT relief | Hill claims risk of persecution if returned | No demonstrated likelihood of persecution or torture | No relief available; denial upheld |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (noncitizen's counsel must inform on immigration consequences; retroactivity open question for collateral review)
- INS v. St. Cyr, 533 U.S. 289 (2001) (statutory relief limitations; credibility of removal grounds)
- Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009) (collateral attacks not available in BIA review for removal)
- Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (scope of review of removal decisions; constitutional claims)
- Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) (evidence of persecution required for asylum/withholding)
- Paredes v. Att’y Gen. of the U.S., 528 F.3d 196 (3d Cir. 2008) (pendency of collateral attack does not negate conviction for immigration purposes)
- Jimenez-Guzman v. Holder, 642 F.3d 1294 (10th Cir. 2011) (Padilla retroactivity considerations in various fora)