Rodriguez v. RenoRodriguez v. Reno
HULL, Circuit Judge:
This consolidated case involves two separate appeals. First, in 1997 Appellant Ernesto Alonso Mejia Rodriguez (“Mejia“) filed a motion to reopen his deportation proceedings, which became final in 1994. The BIA denied Mejia‘s motion to reopen. In appeal No. 98-5878, Mejia has filed a petition for review in this Court appealing the BIA‘s denial of his motion to reopen.
While his motion to reopen was still pending before the BIA, Mejia filed a
I. Facts and Procedural History
Mejia is a native of Honduras who lawfully entered the United States as a nonimmigrant visitor on November 17, 1980.
A. Mejia‘s Criminal Offense
On April 14, 1986, Mejia was charged in Florida state court with possession of cocaine, trafficking in cocaine, and conspiracy. On July 24, 1986, Mejia pled no contest to the cocaine-trafficking charge. As part of a plea agreement, the court withheld a final adjudication of guilt and sentenced Mejia to a one-year term of youth-offender incarceration and two years to be served in a “Community Control Program.”
Mejia introduced evidence in the district court which established that he entered his no-contest plea in reliance on certain representations.1 Specifically, both the trial court and Mejia‘s counsel advised him that his no-contest plea would not yield any adverse immigration consequences. In addition, Mejia was advised that his criminal record would be sealed upon completion of his probationary sentence.
Prior to his first deportation hearing, Mejia filed a petition in Florida state court to seal his criminal record. The Florida court denied Mejia‘s petition. After his first deportation hearing, Mejia filed a motion for reconsideration of the state court‘s denial of his petition to seal his criminal record. Mejia‘s motion contended
B. Deportation Proceedings Concluded in 1994
On March 8, 1990, the INS commenced deportation proceedings against Mejia. The INS issued an Order to Show Cause which asserted two grounds for deportation. First, the INS charged Mejia with deportability under
On December 6, 1990, the INS amended its show-cause order withdrawing these two grounds for deportation and charging Mejia with deportability under
After the state court had sealed Mejia‘s criminal record, the immigration judge found Mejia deportable. On January 24, 1991, the immigration judge entered a deportation order concluding that Mejia had unlawfully remained in the United States beyond the period allowed by his nonimmigrant visa. However, the immigration judge allowed Mejia leave to file for “suspension of deportation.” On February 21, 1991, Mejia filed for suspension of deportation under
The INS immediately moved to pretermit Mejia‘s motion for suspension of deportation. The INS argued that Mejia‘s drug conviction precluded a finding that
On August 2, 1991, following a hearing, the immigration judge granted the INS’ motion to pretermit Mejia‘s motion for a suspension of deportation and ordered Mejia deported to Honduras. First, the immigration judge admitted into evidence the records of Mejia‘s cocaine conviction that had been sealed by the Florida state court. The immigration judge specifically noted that he admitted the records only for the purpose of considering Mejia‘s application for suspension of deportation and not to establish another ground for deportation. The immigration judge found that these records established a conviction as defined under federal immigration law. Based on his conviction for cocaine trafficking, the immigration judge found that Mejia could not be deemed a person of “good moral character” and therefore could not meet the requirements for suspension of deportation under
Mejia appealed the immigration judge‘s August 1991 decision to the BIA, and on January 12, 1994, the BIA affirmed the deportation order entered by the immigration judge. First, the BIA concluded that the immigration judge properly
C. Mejia is a Fugitive from May 1995 Until September 1997
In a letter dated April 12, 1995, the INS informed Mejia that he was scheduled to be deported on May 12, 1995, and ordered him to report to the INS on that date for deportation to Honduras. Mejia did not appear for deportation as ordered. Although Mejia could have sought judicial review of the BIA‘s January 1994 decision, he did not do so and instead absconded.
D. Drug Conviction Vacated in 1997
While he remained a fugitive from deportation, on May 21, 1997, Mejia petitioned in Florida state court for a writ coram nobis in which he sought to vacate his drug-trafficking conviction. Mejia contended that he did not receive effective
On August 1, 1997, the state court vacated Mejia‘s plea and sentence. Subsequently, the Florida State‘s Attorney announced a nolle prosequi of the cocaine-trafficking charges against Mejia.
E. BIA Denies Mejia‘s Motion to Reopen Deportation Proceedings
On September 23, 1997, the INS took Mejia into custody to execute the final deportation order entered in January 1994. On September 26, 1997, Mejia filed two motions to reopen his deportation proceedings – one with the immigration judge and one with the BIA. According to Mejia, the immigration judge refused to accept this motion. Before the BIA, Mejia argued that his application for suspension of deportation had been pretermitted based on a criminal conviction and that this conviction was vacated after his suspension application had been pretermitted. Thus, Mejia contended that the BIA should reopen his deportation proceeding to allow him to file another application for suspension of deportation.
In an order dated November 27, 1998, the BIA denied Mejia‘s motion to reopen his deportation proceedings. The BIA noted that under
F. Mejia‘s Petition for a Writ of Habeas Corpus
On September 26, 1997, while his motion to reopen his deportation proceedings was still pending before the BIA, Mejia filed a
On September 26, 1997, the district court dismissed Mejia‘s habeas petition and denied his request for a stay of deportation. The district court found that Mejia‘s petition was not timely filed under
Mejia filed a motion for reconsideration of the court‘s order and for a stay of his deportation. In his motion, Mejia argued that the district court had erroneously relied on
G. Mejia‘s Renewed Habeas Petition
On November 21, 1997, Mejia filed a renewed petition for habeas corpus under the same civil action number in the district court. In his new petition, Mejia reiterated the claims that he asserted in his initial petition and again asserted
On March 12 1998, the district court dismissed Mejia‘s renewed petition and denied his request for a stay of deportation. The district court found that under
The district court reasoned that essentially Mejia‘s habeas corpus petition “invited the court” to force the immigration judge to consider an untimely motion to reopen that the judge had refused to consider. The district court concluded that it “must decline that invitation.”
On March 12, 1998, Mejia filed a Notice of Appeal of the district court‘s decision and, on March 13, 1998, this Court temporarily stayed Mejia‘s deportation pending appeal.
III. Discussion
A. Mejia‘s Two Appeals
Two appeals are involved in this case. First, Mejia appeals the district court‘s dismissal of his
Likewise, we do not reach the issue of whether Mejia‘s petition for review is governed by the INA prior to the amendments by IIRIRA or by the INA as amended by IIRIRA. Mejia‘s 1994 deportation order became final prior to IIRIRA‘s enactment, but Mejia‘s motion to reopen was filed after IIRIRA‘s general effective date. A split in the circuits exists over whether a motion to reopen is a new proceeding or a continuation of the deportation proceedings. Lerma de Garcia v. INS, 141 F.3d 215 (5th Cir. 1998); Sarmandi v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997); Chow v. INS, 113 F.3d 659, 665 (7th Cir. 1997) with Wright v. Ouellette, 171 F.3d 8, 12 (1st Cir. 1999). If a motion to reopen
B. Standard of Review
This Court reviews the BIA‘s denial of a motion to reopen for an abuse of discretion. Gomez-Gomez v. INS, 681 F.2d 1347, 1348 (11th Cir. 1982).
C. Mejia‘s Untimely Motions to Reopen
Mejia has not established that the BIA abused its discretion in denying his motion to reopen and has not established that he has suffered any constitutional injury in his deportation proceedings. Mejia argues that he continues to suffer the consequences of the ineffective assistance of counsel that he received in his state
The BIA correctly concluded that Mejia‘s motions were untimely. Pursuant to
C. Mejia‘s Fifth Amendment Ineffective-Assistance Claim
Since Mejia‘s motion to reopen is clearly time barred, Mejia alternatively contends that his motion to reopen was untimely as a result of ineffective assistance of counsel in his deportation proceedings. Mejia contends that the same attorneys who advised him that his no-contest plea would not affect his immigration status also pursued a “frivolous legal position” in attempting to argue that Mejia‘s conviction could not be used as grounds for deportation. Thus,
In order to evaluate Mejia‘s ineffective-assistance argument, it is important to reemphasize that Mejia is currently facing deportation for overstaying his student visa – not for his drug conviction. Mejia does not contest the validity of the basis for his deportation order. Therefore, Mejia‘s ineffective-assistance contentions necessarily focus on only his argument that, except for the cocaine conviction, he would have been eligible for suspension of deportation. As suspension of deportation is an extraordinary remedy over which the Attorney General possesses broad discretion, Mejia does not, and cannot, argue that he would have received suspension, and thus would not be facing deportation, if he had received effective assistance from his counsel during his initial deportation proceedings. Thus, the issue becomes whether deficient representation by counsel
D. Ineffective Assistance in the Context of Eligibility for Suspension of Deportation
Despite Mejia‘s arguments, the application of the limitations periods from
Aliens enjoy the right to the effective assistance of counsel in deportation proceedings. Barthold v. INS, 517 F.2d 689, 690 (5th Cir. 1975). Numerous courts have recognized that a deportation proceeding implicates an alien‘s liberty interest, which is protected by the Due Process Clause. See, e.g, Bridges v. Wixon, 326 U.S. 135, 154 (1945); Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1037 n.30 (5th Cir. 1982). Therefore, the Due Process Clause – not the Sixth Amendment – gives rise to the right to effective assistance of counsel in deportation proceedings. Id. Thus, to establish the ineffective assistance of counsel in the context of a deportation hearing, an alien must establish that his or her counsel‘s performance was deficient to the point that it impinged the “fundamental fairness” of the hearing. Id. at 691. Other circuits have concluded that to establish the lack of fundamental fairness in a deportation proceeding, the alien must establish deficient representation and “prejudice” or “substantial prejudice” arising from this deficient representation. See, e.g., Esposito v. INS, 987 F.2d 108, 110 (2d. Cir. 1993); Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir.1986); Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (requiring a showing of “substantial prejudice“).
However, the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465 (1981). In Dumschat, the Supreme Court held that a state inmate does not enjoy a constitutionally protected liberty interest in having his or her sentence commuted, even where the state “consistently” commuted the sentences of inmates in “most” cases. Dumschat, 452 U.S. at 464-65. The Court reasoned that “a constitutional entitlement cannot ‘be created – as if by estoppel – merely because a wholly and expressly discretionary state privilege has been granted generously in the past.‘” Id. (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979). Instead, according to the Court, “[i]n terms of the Due Process Clause, a . . . felon‘s expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate‘s expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope.” Dumschat, 452 U.S. at 465.
This Court has applied Dumschat in the immigration context. Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986). In Garcia-Mir, a group of Cuban aliens claimed a liberty interest in remaining “paroled”7 into the United States while their immigration proceedings were pending. Id. at 1450-51. This Court acknowledged that actions by both Congress and the President had created a substantial expectation that the Cuban aliens would be allowed to remain on parole. Id. Nevertheless, as was the case in Dumschat, this Court in Garcia-Mir reasoned that, where a statute or regulation does not limit the executive‘s discretion to award relief, an expectancy of such relief does not give rise to a liberty interest protected by the Due Process Clause. Id. at 1452. Thus, relying on Dumschat, this Court concluded that the aliens did not enjoy a constitutionally protected liberty interest in “parole“, which remained a purely discretionary form of relief. Id.
Likewise, the Seventh and Tenth Circuits have applied Dumschat to conclude that aliens do not enjoy constitutionally protected interests in either the adjustment of immigration status or “deferred action” by the INS. In Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985), the Seventh Circuit held that aliens did not enjoy a protectable liberty interest in the reopening
Very similar to the type of relief at issue in Dumschat and Garcia-Mir, “suspension of deportation” is an “act of grace” committed to the “unfettered discretion” of the Attorney General. Jay v. Boyd, 351 U.S. 345, 354 (1956) (quoting Escoe v. Zerbst, 295 U.S. 490, 492, (1935)). As such, even if an alien meets the statutory requirements for eligibility for suspension of deportation, the alien is not in any way entitled to this “exceptional remedy.” Id.; INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981); Saiyid v. INS, 132 F.3d 1380, 1384 (11th Cir. 1998); see also Gomez-Gomez v. INS, 861 F.2d 1347 (11th Cir. 1982) (reasoning that the Attorney General has the discretion to interpret narrowly the requirement of “extreme hardship“). In this sense, suspension of deportation is similar to an executive pardon. Jay, 351 U.S. at 355 n.16. Indeed, the Supreme Court recently reaffirmed the analogy between suspension of deportation and an executive pardon by stating:
We have described the Attorney General‘s suspension of deportation under a related and similarly phrased provision of the INA as “‘an act of grace‘” which is accorded pursuant to her “unfettered discretion” and have quoted approvingly Judge Learned Hand‘s likening of that provision to “‘a judge‘s power to suspend the execution of a sentence, or the President‘s to pardon a convict.‘”
INS v. Yueh-Shaio Yang, 519 U.S. 26, 29 (1996) (citations omitted).
Accordingly, an attorney‘s deficient representation does not deprive an alien of due process if the deficient representation merely prevents the alien from being eligible for suspension of deportation. An alien‘s actual chances of receiving such discretionary relief are too speculative, and too far beyond the capability of judicial review, to conclude that the alien has actually suffered prejudice from being ineligible for suspension of deportation. Just as a convicted felon enjoys no constitutional right to a pardon and aliens have no due process rights to being “paroled“, an alien has no constitutional right to suspension of deportation. Just as a court cannot review the inherently “subjective” judgments made by the executive in deciding whether to commute a life sentence, this Court cannot predict the subjective and fact-intensive judgments that the Attorney General would make in deciding whether to grant extraordinary relief, such as the suspension of
IV. Conclusion
For the foregoing reasons, the Board of Immigration Appeals’ final order of deportation is AFFIRMED. The appeal from the district court‘s judgment dismissing the
Notes
At the time of Mejia‘s initial deportation proceedings, the Attorney General could order the “suspension of deportation” if: (1) deportation was based on certain specified grounds, (2) the alien had “been physically present in the United States for a continuous period of not less than seven years immediately preceding” the application for suspension or “physically present in the United States for a continuous period of not less than ten years” after becoming deportable, (3) in that time was a person of “good moral character“, and (4) in the opinion of the Attorney General, deporting the alien would cause “exceptional and extremely unusual hardship” to the alien or any of the alien‘s “spouse, parent, or child” who are United States citizens.
Even if Mejia had met the first three requirements for suspension of deportation, he has not demonstrated that he would have received suspension of deportation. Mejia does not contend that he has a spouse, parent, or child who are United States citizens. Thus, Mejia would have had to demonstrate that his deportation would cause him to suffer exceptional and unusual hardship. The Attorney General possessed the discretion to construe narrowly the “exceptional and extremely unusual hardship” element of the suspension-of-deportation analysis. Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982). See footnote 8 infra.
We note that the Second and Fifth Circuits have recognized potential ineffective-assistance-of-counsel claims based on an attorney‘s failure to apply for a waiver of deportation under
Third, even under Rabiu and Miranda-Lores, it does not appear that Mejia would be able to establish an ineffective-assistance claim. Under Rabiu, an alien must make a prima facie showing of eligibility for waiver of deportation and demonstrate a “strong showing” in support of the application for discretionary relief. Id. at 882 . Similarly, under Miranda-Lores, the alien must establish “substantial prejudice” arising from the deficient performance, which requires that the alien make a prima facie showing of eligibility and demonstrate that he or she would receive the relief sought. Id. at 85 (rejecting the ineffective assistance-claim because the alien failed to establish prejudice).
In this case, to be eligible for suspension, Mejia would have had to demonstrate “exceptional and extremely unusual hardship” if he is returned to Honduras. Mejia has not made a “strong showing” of an “exceptional . . . hardship” and thus has not shown “prejudice” – let alone “substantial prejudice” – arising from his attorneys’ deficient performance.