Marquez-Medina v. Underdown ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30606
Summary Calendar
JORGE MARQUEZ-MEDINA,
Petitioner-Appellant,
versus
LYNN UNDERDOWN,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Louisiana
USDC No. 97-CV-713-E
May 5, 1999
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jorge Marquez-Medina appeals the district court’s judgment
dismissing his application for a writ of habeas corpus. See 28
U.S.C. § 2241. The Immigration Judge denied Marquez’s request for a
waiver of excludability and adjustment of status (Marquez admits he
is and was an excludable alien; he sought only discretionary relief).
Marquez did not timely appeal the Immigration Judge’s ruling to the
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
Board of Immigration Appeals (BIA). Marquez’s sole contention on
this appeal is that he received ineffective assistance of counsel
because his attorney failed to appeal the Immigration Judge’s
decision to the BIA.
The government asks that we dismiss this appeal on
jurisdictional grounds. However, the jurisdictional arguments made
and the authorities cited by the government in this respect all go to
whether the district court had jurisdiction, not whether we have
jurisdiction over Marquez’s appeal from the district court’s judgment
denying him all relief. The district court granted in part and
denied in part the government’s motion to dismiss Marquez’s habeas
application for want of jurisdiction, and denied Marquez all relief.
The government has filed no appeal or cross appeal whatever. Marquez
is the sole appellant. Dismissal of Marquez’s appeal for want of
jurisdiction would leave the district court’s judgment in effect,
which is what we ultimately do anyway. Further, we have noted that,
despite the AEDPA and the IIRIRA, “‘criminal deportees retain some
opportunity to apply for writs of habeas corpus.’” Lerma de Garcia v.
INS, 141 F.2d 215, 216 (5th Cir. 1998).
We reject Marquez’s appeal. There is no Sixth Amendment right
to counsel in a deportation proceeding. See Ogbemudia v. INS, 988
F.2d 595, 598 (5th Cir. 1993). “Nevertheless, the absence of an
attorney may create a due process violation if the defect impinged
upon the fundamental fairness of the hearing in violation of the
fifth amendment, and there was substantial prejudice.” Id.; see
Miranda-Lores v. INS, 17 F.3d 84, 85 & n.1 (5th Cir. 1994). The
district court held that Marquez could not show that he was
2
prejudiced because an appeal clearly would have been futile. Marquez
does not contend that he would have prevailed on appeal. Instead,
citing United States v. Gipson, 985 F.2d 212 (5th Cir. 1993), Marquez
merely contends that the “loss of the right to appeal is prejudicial
in and of itself [and] it is not necessary to consider whether or not
the party would have prevailed on appeal.” Gipson is a Sixth
Amendment case. In the Fifth Amendment context, this Court has
required a showing of actual prejudice. See Miranda-Lores, 17 F.3d
at 85; see also Patel v. INS, 803 F.2d 804, 806-07 (5th Cir. 1986).
Because Marquez has not shown that he was actually prejudiced by his
attorney’s failure to perfect an appeal to the BIA, he has not
demonstrated any denial of due process, even if he, as an alien
subject to exclusion, were due as much process as a lawfully admitted
alien subject to deportation (a matter we need not and do not
address).
Marquez’s appeal demonstrates no reversible error in the
district court’s denial of any relief to him, and accordingly the
district court’s judgment is
AFFIRMED.
3