Alejandre-Gallegos v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2015
Elisabeth A. Shumaker
Clerk of Court
SANTIAGO ALEJANDRE-GALLEGOS,
Petitioner,
v. No. 14-9567
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Worried that he could be deported for his unlawful presence in this country,
Santiago Alejandre-Gallegos sought discretionary relief under 8 U.S.C. § 1229b(b),
which sometimes allows the Attorney General to “cancel” a deportation that would
result in “unusual hardship” to an alien’s U.S. citizen family members. Garcia-
Carbajal v. Holder, 625 F.3d 1233, 1235 (10th Cir. 2010). An Immigration Judge
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied the request and so did the Board of Immigration Appeals. No matter how
hard the hardship, the BIA noted, an applicant can’t win cancellation of removal if he
has been convicted of a crime involving moral turpitude. See 8 U.S.C. §§ 1182(a)(2)
& 1229b(b)(1)(C). And, the BIA observed, Mr. Alejandre-Gallegos has pleaded
guilty to at least one such offense.
Now before us, Mr. Alejandre-Gallegos seeks to undo this decision but his
attorney fails to give us any grounds on which we might. Counsel suggests the BIA
relied on improper evidence but doesn’t supply any citations to the record where it
went wrong on the facts (despite Fed. R. App. P. 28(a)(8)(A)). He suggests that the
BIA applied the wrong legal standards but doesn’t cite any legal authority that might
remotely support his claim. He even spends pages discussing another criminal
charge against his client irrelevant to the one on which the BIA relied. Neither are
counsel’s shortcomings confined to such important things. His statement of related
cases actually includes argument (in defiance of 10th Cir. R. 28.2(C)(1)). He does
not “cite the precise reference in the record where [each of his issues] was raised and
ruled on” (as required by 10th Cir. R. 28.2(C)(2)) and his statement of the case
includes no record citations at all (as required by Fed. R. App. P. 28(a)(6)). His brief
contains no “summary of the argument.” Fed. R. App. P. 28(a)(7). He hasn’t even
bothered to “alphabetically arrange[]” his table of authorities. Fed. R. App. P.
28(a)(3)). We could go on.
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Essentially, counsel pronounces that the BIA mistook the facts and acted in
defiance of law and leaves it to the court to go fish for facts and law that might
possibly support his claim. This, of course, the court has no obligation and is poorly
positioned to do. In our adversarial system, neutral and busy courts rely on lawyers
to develop and present in an intelligible format the facts and law to support their
arguments and “[t]he adversarial process cannot properly function when one party
ignores its obligations under the rules.” MacArthur v. San Juan Cnty., 495 F.3d
1157, 1160 (10th Cir. 2007); see also Aquila, Inc. v. C.W. Mining, 545 F.3d 1258,
1268 (10th Cir. 2008); United States v. Hahn, 359 F.3d 1315, 1329 n.15 (10th Cir.
2004) (en banc). For that reason it’s within the court’s power “to dismiss an appeal
when the appellant has failed to abide by the rules of appellate procedure.”
MacArthur, 495 F.3d at 1161. That’s the course we find ourselves forced to take in
this case. We dismiss the petition for review.
We confess reluctance about having to proceed so summarily and about having
to chastise a professional colleague in this way. Everyone makes mistakes, and
surely judges no less than lawyers. But the shortcomings here don’t just suggest a
mistake, a few, or even a thoroughgoing disinterest in the rules of procedure. They
suggest a lack of competent representation. For all we know from counsel’s garbled
submission before us, his client may have a good claim or at least an arguable one:
we just cannot tell. That worry occupied us so much that we decided to review
counsel’s past filings in this court to see if his conduct here was (hopefully)
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anomalous. But the results proved even more disquieting. They revealed that for at
least a decade attorney John E. Reardon, Sr., has represented in this court immigrants
seeking relief from removal — and that for at least that long his filings in this court
have consistently suffered from the sort of shortcomings present in this one. It turns
out that this court has noted the problem time and again. It has reminded counsel of
his professional obligations. It has admonished him. All to no effect.1
At some point, this court has a duty to do more than observe, record, and warn.
It has a duty to act. After reviewing the record before us, we are confident that time
has more than come. Because we believe sanctions — including suspension from
this court’s bar and restitution — may be appropriate, we direct the Clerk to initiate a
1
See, e.g., Medina-Chimal v. Holder, 14-9564, slip op. at 7 n.3 (10th Cir. Mar.
20, 2015); Gonsalez v. Holder, 567 F. App’x 612, 614 (10th Cir. 2014) (noting that
Mr. Reardon’s arguments “are prolix, vague, and contain little discussion of the
precise circumstances of this case”); Vigil-Lazo v. Holder, 571 F. App’x 708, 711 n.2
(10th Cir. 2014) (observing that Mr. Reardon “offer[ed no] substantive argument” to
support his client’s “conclusory” claim of error); Pizano-Zeferino v. Holder, 432
F. App’x 767, 770 (10th Cir. 2011) (declining to indulge Mr. Reardon’s “unfocused”
constitutional contentions and holding that he failed to exhaust certain other
arguments); Duron-Amador v. Holder, 381 F. App’x 778, 782 (10th Cir. 2010)
(denying a petition for Mr. Reardon’s failure to comply with Fed. R. App. P. 28(a));
Herrera-Castillo v. Holder, 573 F.3d 1004, 1006 n.5, 1010 (10th Cir. 2009) (noting
that Mr. Reardon neglected to file his opening brief on time and finding some
arguments waived due to his failure to comply with Fed. R. App. P. 28(a)); Mendiola
v. Gonzales, 189 F. App’x 810, 814-15 (10th Cir. 2006) (rejecting several of
Mr. Reardon’s arguments as poorly developed or unexhausted); Mendez Suarez v.
Comfort, 117 F. App’x 1, 2-3 (10th Cir. 2004) (noting the difficulty of
“ascertain[ing] specifically what [Mr. Reardon] is arguing in his brief” and deciding
only to review a handful of claimed errors “due to his failure to set forth a coherent
argument” supporting any others).
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disciplinary proceeding against Mr. Reardon. See Fed. R. App. P. 46(c); 10th Cir. R.
46.6; Tenth Circuit Plan for Attorney Disciplinary Enforcement §§ 2.3 & 3.
So ordered.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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