Ruрerto GUTIERREZ-MORALES, Petitioner-Appellant, v. Tom HOMAN, etc., et al., Respondents-Appellees.
No. 04-51143.
United States Court of Appeals, Fifth Circuit.
Aug. 21, 2006.
455 F.3d 605
III.
Because we agree that Appellants failed to demonstrate that their proposed class satisfied either the predominance or superiority requirements of
AFFIRMED.
John Francis Paniszczyn (argued), San Antonio, TX, for Respondents-Appellees.
Before SMITH, WIENER and STEWART, Circuit Judges.
WIENER, Circuit Judge:
In response to the well-taken motion of Respondents-Appellees to amend our previous opinion,1 we hereby withdraw that opinion and substitute the following in its place:
Ruperto Gutierrez-Morales (“Gutierrez“) petitions us for review of the Board of Immigration Appeals’ (“BIA“) decision declining to reopen his removal proceedings. At issue is (1) whether this court has jurisdiction to entertain Gutierrеz‘s appeal, and (2) if so, whether Gutierrez is entitled to relief from his order of deportation on the basis of ineffective assistance of counsel.
I. FACTS & PROCEEDINGS
A. Gutierrez‘s Removal Order
Gutierrez, a native and citizen of Mexico, has lived in the United States since his admission as a lawful permanеnt resident in 1997. Later that year, Gutierrez was convicted of aiding and abetting the entry of illegal aliens into the United States in violation of
Before the Immigration Judge (“IJ“), Gutierrez did not challenge his removability. Instead, he sought to apply for a discretionary waivеr of removal under § 240A of the INA,2 which authorizes the Attorney General to cancel a permanent resident alien‘s removal when, inter alia, the alien‘s deportation would cause family hardship.3 The IJ ordered Gutierrez to file his application for § 240A relief by June 24, 2002. Gutierrez failed to do so and, as a result, the IJ held that Gutierrez hаd abandoned his application and ordered him removed from the United States.
The next day, Gutierrez‘s lawyer filed a motion with the IJ to reopen Gutierrez‘s removal proceedings. In support of this motion, Gutierrez argued that his lawyer‘s health problems prevеnted counsel from filing the § 240A relief application on time. Unconvinced, the IJ denied the motion. The IJ reasoned in part that, to the extent that Gutierrez was alleging ineffective assistance of counsel, he had not satisfied the BIA‘s procedural requirements for bringing an ineffective assistance of counsel claim.4 In July 2003, the BIA affirmed the
B. Gutierrez‘s First Set of Challenges to His Removal Order
1. Petition for Review
In August 2003, Gutierrez made his first trip to this court, petitioning us to review the BIA‘s July 2003 decision affirming the IJ‘s denial of his motion to reopen.5 We affirmed the BIA‘s decision in an unpublished opinion. Specifically, we determined that the IJ properly denied Gutierrez‘s motion to reopen “because [Gutierrez] was informed of his right to apply for cancellation of removal, and he was provided an oрportunity to do so. Thus, the [IJ] did not violate [Gutierrez‘s] due process rights.”6
2. Habeas Corpus
Hedging his bets, Gutierrez filed a concurrent habeas petition in the Western District of Texas challenging his removal order. The district court denied Gutierrez‘s habeas petition, ruling, inter alia, that (1) because § 240A relief is entirely discretionary, no interest in that relief is protected by the Due Process Clause; and, alternatively, (2) because Gutierrez had yet to comply with the BIA‘s Lozada requirements, he could not present his ineffective assistance of counsel claim. Gutierrez did not aрpeal the district court‘s denial of his first habeas petition to this court.
C. Gutierrez‘s Second Set of Parallel Challenges to His Removal Order
Undeterred by his failure to obtain relief from removal, Gutierrez initiated a new round of challenges. After firing his lawyer and employing new counsel, Gutierrez returned to the BIA on May 11, 2004, with a new motion to reopen. Gutierrez‘s new motion urged the BIA to exercise its authority to reopen his removal proceedings sua sponte.7 Gutierrez contended that his initial lawyer‘s assistance had been constitutionally ineffective because he missed the deadline for filing Gutierrez‘s application for waiver of removal. Notably, the record reflects that by the time Gutierrez filed this new motion to reopen, he had complied with Lozada‘s procedural requirements.
On September 1, 2004, the BIA denied Gutierrez‘s motion tо reopen. Specifically, the BIA held that Gutierrez‘s case did not present the type of exceptional circumstances that warrant the sua sponte reopening of removal proceedings.
To challenge this BIA decision, Gutierrez took a belt-and-suspenders approach, filing both a habeas аction in the Western District of Texas and a petition for review
Gutierrez filed his habeas petition on Sеptember 23, 2004. In it, he challenged the BIA‘s decision on grounds of ineffective assistance of counsel. The district court dismissed the petition for lack of jurisdiction because, at that time, we had not yet ruled on Gutierrez‘s above-mentioned petition for review сhallenging the same BIA decision. Thus, the district court concluded that Gutierrez had not exhausted his administrative remedies, depriving that court of jurisdiction. It is to appeal this decision of the district court—its dismissal of his September 2004 habeas petition on jurisdictional grounds—fоr which Gutierrez makes his third trip to this court.
II. ANALYSIS
A. Petition for Review
While Gutierrez‘s appeal was pending, Congress enacted the REAL ID Act on May 11, 2005. The Act retroactively “divested federal courts of jurisdiction over § 2241 [habeas] petitions attacking removal orders.”9 Section 106 instructs district courts to transfer pending habeas challenges to the appropriate court of appeals and instructs courts of appeals to “treat the transferred case[s] as if [they] had been filed pursuant to a petition for review.”10 As we have prеviously noted, however, “Congress neglected . . . to specify what was to happen to habeas petitions that were already on appeal as of the REAL ID Act‘s effective date.”11 We filled this gap, declaring that “despite Congress‘s silence on this issuе, habeas petitions on appeal as of May 11, 2005, . . . are properly converted into petitions for review.”12 As Gutierrez‘s habeas petition challenges a removal order and was pending on May 11, 2005, we treat it as a timely petition for review.
B. Successive Petition
This is Gutierrеz‘s third petition for review. Courts have jurisdiction to entertain successive petitions for review only in limited circumstances. Specifically, under
a court may review a final order of removal only if—
(1) the alien has exhausted all administrative remedies available to the alien as of right, and
(2) another court has nоt decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffеctive to test the validity of the order.13
Although this is Gutierrez‘s third trip through the system, we find that he could not have presented his ineffective assistance of counsel claim until now.
When Gutierrez filed his first petition for review, the factual basis for his ineffective assistance of counsel claim existed. Gutierrez, however, could not have reason-
Gutierrez could not have presented his claim of ineffective assistance of counsel in his second petition for review because it was not timely filed. We therefore did not have jurisdiction to reach the merits of his claim. Accordingly, the plain terms of
C. Discretionary Relief
Under
At the outset, we note that this court has never squarely held that an alien has “a constitutional right to effective counsel in removal proceedings.”14 We have stated several times in dicta, however, that an alien‘s “right to due process is viоlated when ‘the representation afforded [him] was so deficient as to impinge upon the fundamental fairness of the hearing,’ and, as a result, the alien suffered substantial prejudice.”15 We assume here for the sake of argument that such a right exists.
Even if we assume that aliens have a constitutional entitlement to effective assistance of counsel in some circumstances, those before us today are not among them. This is because “the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.”16 Concomitantly, when there is no due process right to the ultimate relief sought, there is no due process right to effective assistance of counsel in pursuit of that relief.17 Here, Gutierrez seeks a waiver оf removal from the Attorney General on the basis of family hardship—ultimate relief that is purely discretionary. Accordingly, Gutierrez has no right to effective assistance of counsel in pursuing that waiver.
Gutierrez attempts to distinguish his case from Assaad on the ground that Assaad had an opportunity to present his waivеr application for consideration on the merits through a formal hearing with the IJ; Gutierrez, on the other hand, did not have any opportunity to present his waiver
III. CONCLUSION
As Gutierrez has no right to effective assistance of counsel in obtaining a discretionary waiver of removal from the Attorney General, his petition for review is DISMISSED and outstanding motions are DENIED.
No. 05-30606.
United States Court of Appeals, Fifth Circuit.
Aug. 21, 2006.
Douglas L. Salzer (argued), Ajubita, Leftwich & Salzer, New Orleans, LA, for Plaintiff-Appellant.
Carol A. Barthel (argued), Kenneth L. Greene, U.S. Dept. of Justice, Tax Div., App. Section, Wаshington, DC, for U.S.