Ramon Gama PUGA, Petitioner-Appellant, v. Michael CHERTOFF, Secretary, Department of Homeland Security; Nancy Alcantar, Field Office Director, Immigration and Customs Enforcement; Alberto R. Gonzales, Attorney General, Respondents-Appellees.
No. 05-16902.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 12, 2007. Filed May 24, 2007.
488 F.3d 812
Edward A. Olsen, United States Department of Justice, United States Attorney‘s Office, San Francisco, CA; Papu Sandhu, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondents-appellees.
Before: J. CLIFFORD WALLACE, DOROTHY W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.
Ramon Gama Puga, a native and citizen of Mexico, appeals the district court‘s dismissal of his habeas petition for lack of jurisdiction under the REAL ID Act,
Although Gama Puga raises an important jurisdictional question about the effect of the REAL ID Act on district courts’ habeas jurisdiction over ineffective assistance of counsel claims brought by alien petitioners, we need not reach that issue here. Instead, we affirm the district court on the grounds that Gama Puga failed to exhaust the administrative remеdies that were available to him, and thus his claim was not properly before the district court. See Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.2005) (“We may affirm the district court on any basis supported by the record.“); Sinochem Int‘l Co. Ltd. v. Malaysia Int‘l Shipping Corp., - U.S. -, 127 S.Ct. 1184, 1193-94, 167 L.Ed.2d 15 (2007) (holding that a federal court may dismiss an action on the basis of a threshold, nonmerits issue without first definitively determining whether it has jurisdiction over the case).
BACKGROUND
In 1990, Gama Puga entered the United States at the age of sixteen. He is mar-
After his asylum interview, Gama Puga was placed in a removal prоceeding. During a hearing before the Immigration Judge (“IJ“), Gama Puga withdrew his asylum application and applied for cancellation of removal under
On September 7, 2005, after the enactment of the REAL ID Act (May 11, 2005), Gama Puga filed a habeas petition with the district court, alleging that his first lawyer provided ineffective assistance. On the same day, Gama Puga also filed a motion for an emergency stay of removal. The district court dismissed Gama Puga‘s habeas petition for lack of jurisdiction under the REAL ID Act and denied his motion for a stay of removаl. On the day Gama Puga was scheduled to be removed, he filed an emergency motion for a stay of removal with this court. We granted a temporary stay of removal, but the order was subsequently vaсated.
On November 17, 2005, Gama Puga was removed to Mexico. He now appeals the district court‘s denial of his habeas petition. We have jurisdiction pursuant to
ANALYSIS
The Immigration and Nationality Act contains a statutorily-mandated ad-
Administrative exhaustion can be either statutorily rеquired or judicially imposed as a matter of prudence. See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir.2003) (“Aside from statutory exhaustion requirements, courts may prudentially require habeas petitioners to exhaust administrative remedies.“). As nоted in Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir.2004), “[i]f exhaustion is required by statute, it may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” Nevertheless, “[p]rudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, - U.S. -, 126 S.Ct. 2422, 2427 & n. 5, 165 L.Ed.2d 323 (2006).
Courts may require prudential exhaustion if “(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” Noriega-Lopez, 335 F.3d at 881 (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir.1990)). The first and second factors are particularly salient in this case and weigh in favor of requiring prudential exhaustion.
Gama Puga contends that his former counsel provided ineffective assistance primarily in two respects: the lawyer filed a frivolous asylum application for the sole purpose of triggering a removal proceeding, and she failed to advise Gama Puga of his ineligibility for relief under
Permitting Gama Puga to present his ineffеctive assistance of counsel claim for the first time before the district court would allow him to bypass the administrative scheme that is in place to deal with claims such as Gama Puga‘s. “A motion tо reopen is the procedural vehicle through which a petitioner may bring, usually for the first time, an ineffective assistance of counsel claim before the BIA.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1123 (9th Cir.2000); see also Liu, 55 F.3d at 426 (“A petitioner must make a motiоn for the BIA to reopen before we will hold that he has exhausted his claims“); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994); Roque-Carranza v. INS, 778 F.2d 1373, 1373-74 (9th Cir.1985).
In some cases, we have not required strict compliance with Lozada requirements, especially when the record shows “a clear and obvious case of ineffective assistance.” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002); see also Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.2000) (noting that “the requirements of Lozada . . . need not be rigidly enforced” when “an adequate factual basis exists in the rеcord for an ineffectiveness complaint and . . . the complaint is a legitimate and substantial one“). Although the first lawyer may have been ill-informed and the consequences of her representation for Gama Puga dire, we previously held that this type of lawyering does not necessarily amount to a due process violation. See Lara-Torres v. Ashcroft, 383 F.3d 968, 973-76 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005); Padilla-Padilla v. Gonzales, 463 F.3d 972, 975-76 (9th Cir.2006).
The record here is unclear as to which elements of Lozada, if any, Gama Puga has satisfied. In the absence of a developed record on this point, we cannot conclude that this bare-bones record demonstrates a “clear and obvious case of ineffective assistance.” Rodriguez-Lariz, 282 F.3d at 1227. Consequеntly, because Gama Puga could, and should have, exhausted his ineffective assistance of counsel claim by filing a timely motion to reopen with the BIA when he retained new counsel, his habeas рetition was not properly before the district court.
AFFIRMED.
M. MARGARET McKEOWN
UNITED STATES CIRCUIT JUDGE
Notes
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) оf this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.