Campos-Javier v. Gonzales ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1265
VICTOR JOSUE CAMPOS-JAVIER,
Petitioner,
v.
ALBERTO GONZALES, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Howard, Circuit Judges,
and Young,* District Judge.
Jorge Guttlein and Associates on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, and Robbin K. Blaya,
Attorney, Office of Immigration Litigation, United States
Department of Justice, on brief for respondent.
July 30, 2007
*
Of the District of Massachusetts, sitting by designation.
Per Curiam. Victor Josue Campos-Javier seeks review of
an order of the Board of Immigration Appeals ("BIA") rejecting his
claim of ineffective assistance of counsel in the removal
proceedings against him. We deny the petition.
Campos-Javier, a citizen of the Dominican Republic,
entered the United States at San Juan, Puerto Rico without
inspection in 1994. He soon married a United States citizen, who
later filed a visa application, known as an "I-130," on his behalf
in 1995. See 8 U.S.C. § 1154(a)(1)(A)(i) (2007); 8 C.F.R. §
204.2(a)(1) (2007). After this application had been approved,
Campos-Javier sought to adjust his immigration status to that of a
lawful permanent resident, filing an "I-485" application. See 8
U.S.C. § 1255(i) (2007); 8 C.F.R. § 245.2 (2006). But, in
September 1998, while that application was pending, his wife
withdrew the visa application, citing "domestic violence and
because we have not lived together for a long time."1
Because he no longer had the visa, Campos-Javier's
application for adjustment of status was denied on June 30, 2000.
See 8 C.F.R. § 245.1(c)(4). The INS simultaneously commenced
removal proceedings against him and took him into custody in Puerto
Rico. Campos-Javier retained an attorney to represent him in the
removal proceedings. At the initial hearing before the immigration
1
The lawful status conferred by a visa can be revoked at any time
for "good and sufficient cause." 8 U.S.C. § 1155 (2007).
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judge ("IJ"), the attorney explained that Campos-Javier's wife, who
was at that time pregnant with their second child, would be willing
to file another I-130 on his behalf, but that more time was needed
to explore possible avenues of relief from removal. The IJ
continued proceedings for one week.
When they reconvened, Campos-Javier, acting through
counsel, made a request for voluntary departure. The IJ granted
it, giving Campos-Javier four months to leave the country. See 8
U.S.C. § 1229c(a)(1). His attorney has since explained that she
did not pursue adjustment of status based on Campos-Javier's
marriage to an American citizen because, at that time, he no longer
had a visa "immediately available" as required for such relief.
See 8 U.S.C. § 1255(i)(2)(B). The attorney recalls that she did
ask the IJ--off the record--to continue the proceedings so that
another I-130 visa application could be filed and processed, but
that the IJ denied the request.2 Campos-Javier's wife eventually
filed another I-130 application on his behalf, but not until May
2003; it was approved in January 2005.
Campos-Javier did not comply with the voluntary departure
order. Instead, more than three years later, he filed a motion to
reopen the removal proceedings. The motion, prepared by a
2
Though INS rules require off-the-record discussions at removal
hearings to be summarized on-the-record, that did not occur here,
at least according to the fragmentary transcript of the proceedings
provided to us.
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different lawyer, claimed that Campos-Javier's prior counsel had
provided ineffective representation by failing to advise him of
what he claimed was an opportunity to seek adjustment of status and
by counseling him to seek voluntary departure instead. The IJ
denied the motion to reopen, explaining that she was reluctant to
second-guess the strategy of predecessor counsel. The IJ also
ruled that, in any event, Campos-Javier had violated the voluntary
departure order and therefore was barred from seeking adjustment of
status for ten years. 8 U.S.C. § 1229c(d) (2007).
Campos-Javier appealed the denial of his motion to reopen
to the BIA, which adopted and affirmed the IJ’s decision. The BIA
also ruled that Campos-Javier had not complied with its procedural
requirements for prosecuting an ineffective assistance of counsel
claim as set forth in In re Lozada, 19 I. & N. Dec. 637 (BIA),
aff'd sub nom. Lozada v. INS, 857 F.2d 10 (1st Cir. 1988).
Specifically, the BIA found that Campos-Javier had not informed his
former attorney of the charge of ineffective assistance against her
and provided her with an opportunity to respond.
Campos-Javier then filed a motion asking the BIA to
reconsider its decision. He argued that his prior counsel was, in
fact, informed of his ineffective assistance claim, because he had
filed a complaint against her with the Disciplinary Committee of
the United States District Court for the District of Puerto Rico,
which, in turn, would have provided her with notice of the claim.
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Campos-Javier also explained that he had not complied with the
voluntary departure order because of the hardship that leaving the
country would cause his wife and children.
The BIA denied the motion to reconsider, concluding that
the motion failed to identify any error of law or fact in the BIA's
previous decision. See 8 C.F.R. § 1003.2(b). Campos-Javier sought
further relief by filing a petition for writ of habeas corpus in
the United States District Court for the Southern District of New
York. While the petition was pending, however, the REAL ID Act
took effect, resulting in the transfer of the case to this court.
REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106(c), 119
Stat. 231, 311. We treat the transferred habeas petition as a
petition for review of a final order of removal under 8 U.S.C. §
1252. See, e.g., Grigous v. Gonzales, 460 F.3d 156, 159 (1st Cir.
2006).
Campos-Javier argues that the BIA should have granted his
motion to reconsider because he "substantially complied" with the
procedural requirements for making an ineffective assistance of
counsel claim set forth in Lozada. We review the BIA's denial of
a motion to reconsider for abuse of discretion. Zhang v. INS, 348
F.3d 289, 293 (1st Cir. 2003).
The BIA refused to reconsider its decision that Campos-
Javier had failed to satisfy one of the Lozada prerequisites to an
ineffective assistance of counsel claim. Those prerequisites are:
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(1) an affidavit describing in detail the agreement
between the alien and his counsel regarding the
litigation matters the attorney was retained to address;
(2) evidence that the alien informed his counsel as to
the alien’s ineffective assistance allegations and
afforded counsel an opportunity to respond; and (3)
evidence that the alien had either filed a complaint with
the appropriate disciplinary authority regarding the
attorney’s ethical or legal misfeasance, or a valid
excuse for failing to lodge such a complaint.
Betouche v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004) (quoting
Lozada, 19 I. & N. Dec. at 639). We have recognized that the BIA
adopted these requirements "to enable the efficient screening of
frivolous, collusive or dilatory claims" of ineffective assistance.
Wang v. Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004). We have also
recognized, then, that the BIA may hold a petitioner to the Lozada
requirements, provided it does so in a non-arbitrary manner. See,
e.g., Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir. 2006); Asaba v.
Ashcroft, 377 F.3d 9, 10 (1st Cir. 2004); Betouche, 357 F.3d at 149
n.2; Saakian v. INS, 252 F.3d 21, 26 (1st Cir. 2001).
Here, the BIA rejected Campos-Javier's ineffective
assistance claim under Lozada because he had not informed his
former attorney of the allegations against her and allowed her the
opportunity to respond to them. Campos-Javier argues, as he did in
his motion to reconsider, that lodging those allegations with the
Disciplinary Committee functionally satisfied the notice
requirement, because the Committee itself would have provided the
attorney with the opportunity to respond. But we expressly
rejected this argument in Betouche, where we found that the
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petitioner had not notified his lawyer within the contemplation of
Lozada by filing a complaint against him with the Massachusetts
Board of Bar Overseers. 357 F.3d at 151. There, we reasoned that
the filing "simply established that [the petitioner] had notified
the Board of Bar Overseers of his complaint, not that either he or
the Board had notified [prior counsel]." Id.The same reasoning applies here, where the record
provides no indication that the Disciplinary Committee notified
Campos-Javier's former attorney of his complaint. In fact, the
Committee responded to the complaint by asking Campos-Javier to
provide "the actual case number" so that it could "answer his
question"--but he did not respond to the Committee until more than
five months later, right after the BIA had already denied his
motion to reopen because, inter alia, there was no evidence that he
notified his prior counsel of his ineffective assistance claim as
dictated by Lozada. Moreover, even when Campos-Javier moved for
reconsideration of this ruling, he did not apprise the BIA of his
response to the Committee. So we cannot consider the effect of
that response, if any, on the question of whether the Committee in
fact notified his previous attorney of the complaint; the response
was never made part of the record before the BIA. See Asaba, 377
F.3d at 12; Betouche, 357 F.3d at 151.
Though Campos-Javier relies on the Committee's rule
affording an attorney facing allegations of misconduct "the
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opportunity to be heard," that rule applies only when such
allegations, "if substantiated, would warrant discipline on the
part of an attorney admitted to practice before this Court."
D.P.R. R. 85.3(b). So the rule alone provides no basis for finding
that the Committee actually notified prior counsel of Campos-
Javier's complaint and, as we have noted, the record is devoid of
any other materials supporting that conclusion.
Furthermore, as we held in Asaba, Lozada demands that
counsel targeted by an ineffective assistance claim "be provided an
opportunity to respond before filing the motion to reopen." 377
F.3d at 12 (emphasis added). In this way, "[t]he Lozada notice
requirement provides a mechanism by which the [IJ] and the BIA 'may
more accurately assess the merits of a petitioner's ineffective
assistance claim.'" Id. (quoting Reyes v. Ashcroft, 358 F.3d 592,
599 (9th Cir. 2004)). That mechanism cannot function when the
attorney does not learn of her former client's ineffective
assistance claim until after the BIA has decided whether to grant
reopening on that basis. Even if we could conclude that Campos-
Javier's response to the Committee resulted in notice to his
previous attorney, then, that notice still would have come too late
to satisfy Lozada. See Asaba, 377 F.3d at 12.
Finally, Campos-Javier argues that he should not have
been held to "strict adherence" to the notice requirement, because
his failure to honor it was "beyond [his] control" in light of his
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difficult family circumstances at the time he sought reopening.
Though we have assumed that the "Lozada requirements might be
excused where [the] alien demonstrated diligent (albeit deficient)
efforts to comply," Betouche, 357 F.3d at 150 (citing Ontiveros-
Lopez v. INS, 213 F.3d 1121, 1124-25 (9th Cir. 2000)), we cannot
consider such an argument here, because Campos-Javier never
presented it to the BIA. See, e.g., Molina De Massenet v.
Gonzales, 485 F.3d 661, 664 (1st Cir. 2007). The petition for
review is denied.
So Ordered.
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