Barrera-De Zavala v. Ashcroft ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 6, 2004
IN THE UNITED STATES COURT OF APPEALS September 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 03-60873
_____________________
MARIA DEL CARMEN BARRERA DE ZAVALA,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL
Respondent.
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On Petition for Review from an Order of
the Board of Immigration Appeals
(A73 756 918)
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BEFORE SMITH, WIENER, and PICKERING, Circuit Judges.
WIENER, Circuit Judge:
Petitioner Maria del Carmen Barrera DeZavala, a native and
citizen of Mexico, petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) dismissing her appeal and
denying her motion to remand based on new evidence. DeZavala
asserts that the BIA violated her due process rights in finding her
deportable under an Order to Show Cause (“OSC”) that incorrectly
stated the basis for her excludability. She also argues that her
attorney’s concession to the erroneous charge at the hearing before
the immigration judge (“IJ”) constituted ineffective assistance of
counsel and deprived her of due process. We deny the petition for
review.
I. FACTS AND PROCEEDINGS
DeZavala is a native and citizen of Mexico, who last entered
the United States on January 2, 1997 at Rio Grande City, Texas.
The Immigration and Naturalization Service (“INS”) issued an OSC to
DeZavala on February 17, 1997, alleging, inter alia, that (1) at
the time of her entry she falsely represented to the inspection
officer that she was a United States citizen and (2) she did not
possess a nonimmigrant visa, border crossing card, or other
document required for entry. Based on these allegations, the OSC
charged that DeZavala was subject to deportation pursuant to the
following statutory provisions:
Section 241(a)(1)(A) of the Immigration and
Nationality Act (Act), as amended, in that at the
time of entry or of adjustment of status, you were
within one or more classes of aliens excludable by
the law existing at such time, to wit: aliens who
are nonimmigrants not in possession of a valid
nonimmigrant visa or border crossing identification
card and not exempted from the possession thereof
by the Act or regulations thereunder, pursuant to
section 212(a)(7)(B)(i)(II).1
On October 29, 1997, DeZavala appeared with her attorney
before an IJ. DeZavala’s attorney denied that DeZavala represented
to the inspection officer that she was a United States citizen. He
stated that DeZavala had entered the United States as a passenger
1
Immigration and Nationality Act, § 241(a)(1)(A), 8 U.S.C. §
1251(a)(1)(A)(repealed 1996); § 212(a)(7)(B)(i)(II), 8 U.S.C. §
1182(a)(7)(B)(i)(II)(2000). In 1996, § 241(a)(1)(A), 8 U.S.C. §
1251(a)(1)(A) was redesignated § 237, 8 U.S.C. § 1227. See Illegal
Immigration Reform and Act of 1996, Pub. L. 104-208, §305(a)(2),
110 Stat. 3009-546, 598.
2
in a vehicle containing five other passengers and that the
immigration officer had questioned only the driver about the
citizenship of the vehicle’s occupants. Initially, her attorney
also denied that DeZavala was deportable as charged in the OSC. He
admitted, however, that DeZavala was not in possession of a
nonimmigrant visa —— or any other documents for that matter —— at
the time of her entry.
On learning that DeZavala entered without documents, the IJ
interjected that “it appears that the charge would not be correct.”
Although the OSC correctly charged DeZavala as being “excludable at
the time of entry” under § 241(a)(1)(A),2 observed the IJ, the
basis for excludability charged in the OSC —— inadmissibility as a
“nonimmigrant who is not in possession of a valid nonimmigrant visa
or border crossing identification card” under §
212(a)(7)(B)(i)(II)3 —— was incorrect. As DeZavala entered without
any documents at all rather than with invalid nonimmigrant
documents, the IJ noted, she is presumed under the law to be an
immigrant.4 The IJ expressed his view that the proper basis for
2
Then-section 241(a)(1)(A) provided, in pertinent part:
“[a]ny alien who at the time of entry or adjustment
of status was within one or more of the classes of
aliens inadmissible by the law existing at such
time is deportable.”(emphasis added)
3
8 U.S.C. § 1182(a)(7)(B)(i)(II)(2000)(emphasis added).
4
See 8 U.S.C. § 1184(b)(2000)(“Presumption of status; written
waiver. Every alien . . . shall be presumed to be an immigrant
until he establishes to the satisfaction of the consular officer,
at the time of application for a visa, and the immigration
3
excludability would be § 212(a)(7)(A)(i)(I), which applies to
“immigrants who [are] not in possession of a valid unexpired
immigrant visa reentry permit, border crossing identification card,
or other valid entry document.”5
Counsel for the government responded to the IJ’s concerns by
stating that he “believed both . . . charges would possibly be
sustainable as well as concedable by [DeZavala’s] counsel,”
informing the IJ that the government would not seek to amend the
OSC. After a brief adjournment, DeZavala’s attorney withdrew his
initial denial to the charge of deportability and conceded her
deportability as a nonimmigrant without proper documentation, as
charged in the OSC. The IJ accepted the concession and found
DeZavala subject to deportation as charged. DeZavala’s attorney
subsequently petitioned the IJ for suspension of deportation or,
alternatively, voluntary departure. Following a hearing on these
issues, the IJ denied both requests.
DeZavala’s attorney filed a timely notice of appeal to the
BIA. His brief was received after the filing deadline had passed,
however, and was therefore rejected by the BIA as untimely. In
February 2001, DeZavala retained new counsel to represent her on
appeal to the BIA (“appellate counsel”). Appellate counsel filed
officers, at the time of application for admission, that he is
entitled to a nonimmigrant status under section 101(a)(15) of this
title.”).
5
8 U.S.C. § 1182(a)(7)(A)(i)(I)(2000).
4
a motion for permission to file an untimely brief, which the BIA
denied. In March 2002, the BIA summarily dismissed DeZavala’s
appeal for failure timely to file a brief. Appellate counsel then
filed a petition for review with us, as well as a motion to reopen
with the BIA based on ineffective assistance by DeZavala’s hearing
counsel, asserting that he had erred in failing to file a motion to
file an untimely brief with the BIA and in conceding DeZavala’s
deportability.
In September of that year, the BIA issued an interim order
granting DeZavala’s motion to reopen and reinstating her appeal.
The BIA based its decision on a determination that it had erred in
summarily dismissing DeZavala’s appeal for failure timely to file
a brief. The BIA expressed no opinion on the merits of DeZavala’s
claim for ineffective assistance of counsel. DeZavala subsequently
dismissed her initial petition to us.
On appeal to the BIA, DeZavala argued that the IJ erred in
finding her deportable as a nonimmigrant under §
212(a)(7)(B)(i)(II) based solely on her hearing counsel’s
concession, as the other evidence in the record established that
she was an immigrant and therefore excludable pursuant to §
212(a)(7)(A)(i)(I). DeZavala asserted alternatively that she
received ineffective assistance at the IJ hearing when her counsel
conceded the erroneous charge. Finally, she requested that, if the
BIA found that the proceedings should not be terminated, her case
should be remanded to the IJ based on new evidence, particularly
5
the cancellation of removal proceedings against her permanent
resident husband, who is a lawful resident alien.
The BIA dismissed DeZavala’s appeal and denied her motion to
remand. In so doing, the BIA observed that “the record supports,
and [DeZavala] does not contest, the finding that [she] was
excludable at the time of entry.” Thus, reasoned the BIA, there
was “no error in the IJ’s conclusion that, pursuant to section
241(a)(1)(A) of the Act, [DeZavala] is deportable as charged.” As
for DeZavala’s claim of ineffective assistance of counsel, the BIA
noted that, even though DeZavala had complied with the procedural
requirements for asserting such a claim, she had failed to
demonstrate prejudice stemming from her hearing counsel’s actions.
Again, the BIA pointed out that the record supports the IJ’s
conclusion that DeZavala was excludable at entry under §
241(a)(1)(A), observing that she neither contested, at either the
IJ hearing or on appeal to the BIA, her excludability under that
general provision, nor “provided evidence demonstrating that she
[wa]s not otherwise deportable.” The BIA therefore declined to
remand her case on the basis of ineffective assistance of counsel.
Finally, the BIA upheld the IJ’s determination that DeZavala had
failed to establish either the seven-year period of continuous
physical presence in this country or good moral character, both
being requirements for entitlement to suspension of deportation and
voluntary departure.
6
DeZavala timely filed this petition for review from the BIA’s
final order. She asserts that the BIA violated her due process
rights when it ordered her deportable pursuant to an OSC that
misstated the specific basis for her excludability under § 212(a).
DeZavala also contends that her hearing lawyer’s concession to her
deportability as charged in the “defective” OSC constituted
ineffective assistance of counsel in violation of her due process
rights. As DeZavala does not seek review of either the BIA’s
denial of her motion to remand or its findings with regards to her
requests for suspension of deportation and voluntary departure,
they are forfeited.
II. ANALYSIS
A. Jurisdiction
The Illegal Immigrant Reform and Immigration Responsibility
Act’s (“IIRIRA”) transitional rules apply to removal proceedings
that commenced prior to April 1, 1997 and concluded more than
thirty days after September 30, 1996.6 As DeZavala’s deportation
proceedings were initiated in February 1997 and did not conclude
until her BIA appeal was denied in October 2003, the IIRIRA’s
transitional rules apply.
B. Due Process
6
See Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th Cir.
2001)(citing Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir.
1998)).
7
We review due process challenges de novo.7 To prevail on such
a challenge, an alien must make “an initial showing of substantial
prejudice.”8 As we conclude that DeZavala has failed to establish
that she was substantially prejudiced by the procedural error she
advances, we reject her claim for violation of procedural due
process.
Whatever the merits of DeZavala’s contention that she was
improperly charged with being excludable at entry as a nonimmigrant
rather than as an immigrant, she has failed to demonstrate
prejudice resulting from the BIA’s decision to deport her as
charged. Although we recognize that a technical distinction exists
between excludability as a nonimmigrant and excludability as an
immigrant,9 both of these § 212(a) bases for exclusion fall under
7
Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)(citing
Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993)).
8
Anwar, 116 F.3d at 144 (citing Howard v. INS, 930 F.2d 432,
436 (5th Cir. 1991); Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052
(5th Cir. 1986)). This Court is “authorized to review only the
decision of the BIA, not that of the IJ” and may consider the
errors of the IJ “only to the extent they affect the decision of
the BIA.” Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993)
9
Section 212(a), § 1182(a), lists the classes of
“inadmissible” or excludable aliens. Included among these classes
are aliens who have failed to comply with the “documentation
requirements” for entry set forth in § 212(a)(7), § 1182(a)(7).
Section 212(a)(7)(A)(i)(I), § 1182(a)(7)(A)(i)(I), the provision
asserted by DeZavala as the proper basis for her excludability,
applies specifically to immigrants without proper documentation.
By contrast, § 212(a)(7)(B)(i)(II), § 1182(a)(7)(B)(i)(II), the
provision charged in the OSC issued against DeZavala, is applicable
only to nonimmigrants without proper documentation.
8
the umbrella of § 241(a)(1)(A)’s general “excludable at entry”
provision. DeZavala does not contest that she is deportable as
being excludable at entry under § 241(a)(1)(A). Neither has she
demonstrated that there is any benefit or advantage to being
deported as an immigrant instead of as a nonimmigrant.
Accordingly, DeZavala has failed to establish the requisite
substantial prejudice necessary to prevail on this procedural due
process claim.
Neither can DeZavala prevail by asserting that she received
ineffective assistance of counsel at the IJ hearing when her
hearing counsel conceded that she was deportable as charged.
First, it is not at all apparent that her attorney was, in fact,
ineffective: His decision to concede the charge may well have been
tactical or, more likely, a result of his recognition that no
substantive difference exists between excludability as a
nonimmigrant and excludability as an immigrant. Second, even if we
assume arguendo that her counsel’s concession did constitute
ineffective assistance, for the reasons stated above, DeZavala
suffered no prejudice from this concession. We therefore hold that
DeZavala’s due process claim based on her hearing counsel’s alleged
ineffective assistance fails.
Finally, we find no merit in DeZavala’s contention that
prejudice inured in the fact that the deportation proceedings
against her were not terminated once the allegedly erroneous basis
for excludability was discovered. DeZavala concedes that, had the
9
IJ terminated the proceedings, the government would have been
justified in bringing new charges against her based on her
excludability at entry as an immigrant. This confirms beyond cavil
that were we to grant review of the BIA’s decision and remand for
termination of the proceedings against DeZavala, it would merely
delay her inevitable exclusion. DeZavala’s inability to prolong
her confessedly illegal status in this country does not establish
substantial prejudice.
III. CONCLUSION
As DeZavala has failed to show substantial prejudice stemming
from any of the errors that she has alleged, we deny review of the
BIA’s final order of deportation.
REVIEW DENIED.
10