Pedro Calla-Collado v. Atty Gen USA ( 2011 )

IMG-200 PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1624
___________
PEDRO JESUS CALLA-COLLADO,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-232-404)
Immigration Judge Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 5, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN,
Circuit Judges
(Opinion filed: October 12, 2011)
_____________
Rex Chen, Esq.
Catholic Charities of the Archdiocese of Newark
976 Broad Street
Newark, NJ 07102
Counsel for Petitioner
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Brooke M. Maurer, Esq.
Janice K. Redfern, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION OF THE COURT
___________
PER CURIAM1
Pedro Jesus Calla-Collado petitions for review of an
order of the Board of Immigration Appeals (“BIA”) affirming
1
This decision was previously issued as a not precedential
opinion. By separate order of this Court, that not precedential
opinion has been vacated and Respondent‟s motion
to publish granted. Changes have been made to the opinion
in preparation for its publication.
2
the decision of the Immigration Judge (“IJ”) ordering his
removal. For the following reasons, we will deny the petition
for review.
Calla-Collado, a native and citizen of Peru, entered the
United States in 2005. In September 2007, he was arrested
for driving while intoxicated.2 Calla-Collado was unlicensed.
When he arrived at police headquarters, police officers
contacted Immigration and Customs Enforcement (“ICE”),
and were informed that Calla-Collado was an undocumented
alien. Calla-Collado was then detained in New Jersey.
Calla-Collado was placed in removal proceedings,
with charges under INA § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i), as an alien present in the United States
without being admitted or paroled. He was subsequently
transferred to Oakdale, Louisiana. An IJ hearing was held in
Louisiana on November 19, 2007, in which Calla-Collado,
through his attorney, admitted to the allegations in the Notice
to Appear (“NTA”).3 He also requested a change of venue to
New Jersey, which was granted.
After venue was changed to New Jersey, Calla-
Collado retained new counsel and filed a motion to withdraw
the pleadings and a motion for an evidentiary hearing. The IJ
2
The police report indicates that Calla-Collado struck a
vehicle, curb, traffic sign, and utility pole while driving under
the influence.
3
On November 6, 2007, Calla-Collado was released from
ICE custody and returned to New Jersey. Consequently, he
was not present at the Louisiana IJ hearing.
3
did not rule on Calla-Collado‟s motions. The IJ found that
Calla-Collado‟s admission waived the issues raised in his
motions. Because Calla-Collado did not apply for any
additional relief, the IJ ordered him removed from the United
States to Peru. The BIA dismissed Calla-Collado‟s appeal,
finding that: (1) he failed to establish that his previous
concession to removability should be suppressed; (2) his
rights were not violated when he was transferred to
Louisiana; and (3) that evidence of his alienage was not
suppressible under the Fourth Amendment. Calla-Collado
filed a petition for review of the BIA‟s final order of removal.
We have jurisdiction under INA § 242(a), 8 U.S.C. §
1252(a)(1). Where the BIA issues a decision on the merits,
we review only the BIA‟s decision. However, we will look to
the IJ‟s analysis to the extent that the BIA deferred to or
adopted it. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d
Cir. 2006). We “will uphold the findings of the BIA to the
extent that they are supported by reasonable, substantial[,]
and probative evidence on the record considered as a whole,
and will reverse those findings only if there is evidence so
compelling that no reasonable factfinder could conclude as
the BIA did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d
Cir. 2003). Our review of legal conclusions is de novo,
subject to principles of deference. Wu v. Attorney Gen. of
the U.S., 571 F.3d 314, 317 (3d Cir. 2009).
Calla-Collado essentially raises three arguments in his
fifty-five-page brief.4 First, Calla-Collado alleges ineffective
4
We agree with both Calla-Collado and the Attorney General
that the BIA‟s analysis of the suppression motions was
unnecessary. The IJ‟s decision to remove Calla-Collado from
4
assistance of counsel.5 He asserts that counsel conceded the
allegations in the NTA without his consent and that the
admission is therefore invalid. An alien is generally bound by
the actions of his attorney. See Green v. Immigration &
Naturalization Serv., 46 F.3d 313, 317 (3d Cir. 1995);
Velasquez, 19 I. & N. Dec. at 382. “[W]hen an admission is
made as a tactical decision by an attorney in a deportation
proceeding, the admission is binding on [the] alien client and
may be relied upon as evidence of deportability.” Velasquez,
19 I. & N. Dec. at 382. Further, a claim of ineffective
assistance of counsel requires that an alien demonstrate
prejudice. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d
the United States was based on Calla-Collado‟s admission to
the allegations in the NTA, not on the information Calla-
Collado alleged was improperly gathered from ICE at the
time of his arrest. Thus, the suppression motions were
immaterial to the IJ‟s decision to order Calla-Collado
removed from the United States. See In re Velasquez, 19 I. &
N. Dec. 377, 380 (BIA 1986). Accordingly, we will not
further review the BIA‟s decision with respect to Calla-
Collado‟s suppression motions.
5
Although Calla-Collado did not use the term “ineffective
assistance of counsel” in his brief to the BIA, Calla-Collado
had argued to the BIA that he and counsel never discussed
conceding the allegations. Thus, the BIA incorrectly stated
that Calla-Collado did not raise a claim of ineffective
assistance of counsel. Typically we would remand this issue
to the BIA; however, when the outcome is clear as a matter of
law, as it is here, remand is not necessary. See Mahmood v.
Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005).
5
Cir. 2003). “For an alien to demonstrate that he suffered
prejudice due to his counsel‟s unprofessional errors, he must
show that there was a „reasonable likelihood that the result
would have been different if the error[s] . . . had not
occurred.‟” Rranci v. Attorney Gen. of the U.S., 540 F.3d
165, 175-76 (3d Cir. 2008) (alteration in original) (quoting
Fadiga v. Attorney Gen. of the U.S., 488 F.3d 142, 159 (3d
Cir. 2007)).
The admission Calla-Collado‟s attorney made on his
behalf was binding and did not prejudice Calla-Collado.
Calla-Collado stated that he and his attorney discussed
changing the venue of the deportation proceeding to New
Jersey. Although he alleges not to have specifically
authorized his attorney to admit the allegations in the NTA,
Calla-Collado acknowledged that the concession may have
been a tactical decision by his attorney to obtain the desired
change of venue, which was corroborated by the attorney‟s
own statement to that effect. As in Velasquez, counsel “may
have concluded that by conceding deportability he would
relieve the [Immigration and Naturalization] Service of its
burden of . . . prov[ing his client‟s] deportability and thereby
heighten the chance that the Service would not oppose a
change of venue.” 19 I. & N. Dec. at 382. Additionally,
Calla-Collado has not argued or proffered evidence that the
binding admission was untrue or incorrect. If, then, the
allegations to which he admitted are accurate, Calla-Collado‟s
removal was in a sense a foregone conclusion because he
alleges no plausible grounds for relief from deportation. See
Fadiga v. Attorney Gen. of the U.S., 488 F.3d 142, 160 (3d
Cir. 2007) (“[A] reasonable likelihood of a different outcome
requires more than a showing of a plausible ground for relief
from deportation.” (internal quotation marks and citation
6
omitted)). Consequently, Calla-Collado cannot demonstrate
that his counsel‟s purported ineffectiveness affected the result
of his deportation proceeding and therefore cannot establish
prejudice. Thus, Calla-Collado‟s ineffective assistance of
counsel claim fails.
Second, Calla-Collado argues that his motion to
withdraw the pleadings6 should have been granted because
the police officers who contacted ICE allegedly violated New
Jersey Attorney General Directive 2007-3 (“AG Directive
2007-3”)7 by questioning him and contacting ICE outside of
the booking process, citing In re Garcia-Flores, 17 I. & N.
Dec. 325 (BIA 1980), as support.8 Garcia-Flores holds that
deportation proceedings should be invalidated where an
immigration regulation has been violated and the violation
prejudiced interests of the alien that were protected by the
regulation. 17 I. & N. Dec. at 328-29. Calla-Collado alleges
6
It appears that Calla-Collado uses the terms “withdraw the
pleadings” and “amend the pleadings” interchangeably.
7
Directive 2007-3 states that “[w]hen a . . . State law
enforcement officer makes an arrest . . . for driving while
intoxicated, the arresting officer or a designated officer, as
part of the booking process, shall inquire about the arrestee‟s
citizenship, nationality and immigration status.” Attorney
General Law Enforcement Directive No. 2007-3, at 3 (Aug.
22, 2007), http://www.nj.gov/lps/dcj/agguide/directives/dir-
le_dir-2007-3.pdf.
8
Although the BIA failed to analyze this issue in its opinion,
we will address it because the outcome is clear as a matter of
law. See Mahmood, 427 F.3d at 252-53.
7
only that a State Attorney General Directive was violated, not
an immigration regulation. Therefore, Garcia-Flores does not
apply. Moreover, even assuming that Garcia-Flores applies
to AG Directive 2007-3 and that the police violated its terms,
Calla-Collado fails to demonstrate that this alleged violation
prejudiced interests of his that were protected by the
directive.9
Third, Calla-Collado argues that his transfer to
Louisiana was egregious, thereby violating his constitutional
rights. He asserts that the transfer was arbitrary because he
had no contacts in Louisiana. As a result, he claims to have
been forced to obtain less effective counsel, rendered unable
to present evidence crucial to his case, and coerced into
admitting his alienage to secure a change of venue. Congress
vested the Department of Homeland Security (“DHS”) with
authority to enforce the nation‟s immigration laws. See 6
U.S.C. § 202. Thus, as a part of DHS, ICE “necessarily has
the authority to determine the location of detention of an alien
in deportation proceedings . . . and therefore, to transfer aliens
from one detention center to another.” Gandarillas-Zambrana
v. Bd. of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir.
1995) (citations omitted); see 8 U.S.C. § 1231(g)(1). An
9
Because we have determined that the pleadings should not
be withdrawn even if the police violated AG Directive 2007-
3, additional information relating to Calla-Collado‟s arrest is
unnecessary. Therefore, the BIA did not abuse its discretion
by affirming the IJ‟s denial of the motion for a continuance or
by not requiring the IJ to compel document production, as the
purpose of these requests was to obtain information and
documents regarding the arrest with which to support Calla-
Collado‟s argument to withdraw the pleadings.
8
alien is guaranteed the right to counsel and the right to present
witnesses and evidence at his deportation proceedings.
Gandarillas-Zambrana, 44 F.3d at 1256. An alien, however,
does not have the right to be detained where he believes his
ability to obtain representation and present evidence would be
most effective. See id.Calla-Collado‟s detention in Louisiana did not violate
his constitutional rights. He had the same rights and
privileges at his deportation proceeding, whether in New
Jersey or Louisiana. See id. He could have presented
evidence or obtained different counsel at his Louisiana
deportation proceeding. He instead chose to retain who he
now believes was “less effective” counsel, concede the
allegations, and request a change of venue. Further, he has
not demonstrated any practical prejudice resulting from the
November 2007 deportation hearing's location in Louisiana.
Calla-Collado does not specify what evidence or witnesses he
would have presented had the Louisiana hearing instead taken
place in New Jersey. Moreover, he does not argue that the
allegations in the NTA are incorrect. Accordingly, the BIA
correctly concluded that DHS did not violate Calla-Collado‟s
rights by transferring him from a detention facility in New
Jersey to a detention facility in Louisiana.
For the foregoing reasons, we will deny the petition for
review.
9