Maccado v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NIGEL JUDSON MACCADO,
Petitioner,
v.
No. 95-2590
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Immigration and Naturalization Service.
(A21-098-333)
Argued: June 6, 1996
Decided: August 26, 1996
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Stuart Jay Snyder, Baltimore, Maryland, for Petitioner.
Jennifer Helene Zawid, Office of Immigration Litigation, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant
Attorney General, Joan E. Smiley, Senior Litigation Counsel, Office
of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Nigel J. Maccado petitions for review of the decision of the Board
of Immigration Appeals denying his motion to reopen his deportation
proceedings. We affirm.
I.
Maccado was convicted in 1987 of passing counterfeit currency,
and he admits that, as a result, he is deportable. 1 Maccado nonetheless
alleges that he has been rehabilitated, and, consequently, that the
Attorney General or her designee should intervene to prevent his
repatriation to India.2
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1 See 8 U.S.C.A. § 1251(a)(2)(A)(i) (West Supp. 1996) (providing for
the deportability of any alien who, within ten years of attaining lawful
permanent resident status, is convicted of a crime involving moral turpi-
tude and subsequently sentenced to confinement for one year or longer).
2 See 8 U.S.C.A. § 1182(c) (West Supp. 1996), which accords the
Attorney General the discretion to waive deportability in certain cases.
As one court of appeals has held, however:
Waivers of deportability are not profligately to be granted. In
deciding whether to exercise its discretionary authority, the
Board must balance the social and humane factors supporting the
application against adverse factors favoring deportation. When
the ground for deportability is the alien's commission of a seri-
ous crime, a high hurdle blocks the path to section 212(c) relief.
In such circumstances it is incumbent upon a petitioner not only
to demonstrate that favorable factors preponderate but also to
present unusual or outstanding equities in order to justify a
waiver.
Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (citations and internal quotation
marks omitted).
2
Maccado contends that the Immigration Judge incorrectly found
the balance of the equities to weigh against a discretionary waiver.
Maccado, who had been represented by counsel at the deportation
hearing, hired a different lawyer to appeal the IJ's ruling to the Board,
but the appeal was eventually dismissed because that lawyer failed to
file a brief identifying the reasons for the appeal. Maccado then
retained yet another lawyer to move to reopen the proceedings on the
ground that his second lawyer had rendered ineffective assistance.
The denial of that motion on procedural grounds is the subject of the
petition for review in this court, before which Maccado appears with
his fourth lawyer.
II.
Neither the correctness of the Immigration Judge's decision nor the
performance of Maccado's second and/or third lawyer in attempting
to appeal that decision are particularly pertinent to our review.
Instead, the issue before us is merely whether the Board abused its
discretion by denying Maccado's motion to reopen. Borokinni v. INS,
974 F.2d 442, 444 (4th Cir. 1992).
As Maccado readily concedes, the motion did not fully comport
with the Board's procedural requirements.3 Moreover, to the extent
that the Board might nonetheless be compelled to grant a non-
conforming motion on the ground that the movant would otherwise
be denied due process of law, we discern no constitutional violation
in Maccado's case.
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3 See Matter of Lozada, 19 I & N 637 (BIA 1988), aff'd Lozada v. INS,
857 F.2d 10 (1st Cir. 1988). A motion to reopen alleging ineffective
assistance must be supported by the movant's affidavit (1) setting forth
the agreement with counsel respecting the actions to be taken, and any
representations made by counsel in that regard; (2) averring that counsel
has been informed of the allegations of ineffectiveness, and has been
notified that he or she may respond; and (3) advising whether a com-
plaint has been filed with the appropriate disciplinary authorities. If no
complaint has been filed, the affidavit must also contain an explanation
of the movant's failure to do so. Maccado's motion failed to comply with
at least the first two requirements.
3
Deportation proceedings are "purely civil" in nature; thus, constitu-
tional guarantees that apply only to criminal proceedings, such as the
Sixth Amendment right to counsel, do not attach. See INS v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984). Consequently, Maccado must
demonstrate that counsel's performance was so deficient as to have
violated his Fifth Amendment right to due process. Figeroa v. INS,
886 F.2d 76, 78-79 (4th Cir. 1989); Lozada, 857 F.2d at 13. Counsel's
ineffectiveness may amount to a denial of due process only "if the
proceeding was so fundamentally unfair that the alien was prevented
from reasonably presenting his case." Ramirez-Durazo v. INS, 794
F.2d 491, 499-500 (9th Cir. 1986) (citation and internal quotation
marks omitted).
Maccado must, at the very least, show that he has been prejudiced
as a result of counsels' alleged ineffectiveness. Figeroa, 886 F.2d at
78. Maccado has shown no prejudice, as the Board itself has pointed
out:
The respondent has failed to establish that he was prejudiced
by the failure of his second counsel to submit a brief. The
respondent in his motion has failed to point out any alleged
error that the Immigration Judge made in the disposition of
his case. The mere fact that his second counsel did not file
a brief in support of the appeal does not establish ineffective
assistance of counsel.
Administrative Record at 5 (citation omitted).
Maccado was permitted to present his entire case before the Immi-
gration Judge, who, quite simply, was unpersuaded. In light of the
abundant evidence weighing against Maccado's assertion that he had
been rehabilitated and the deferential standard of review, he cannot
demonstrate a substantial probability that the Immigration Judge's
decision would have been reversed had the Board fully considered the
merits of his appeal. We hold that the Board did not abuse its discre-
tion by denying Maccado's motion to reopen his deportation proceed-
ings.
The Board's decision is affirmed.
AFFIRMED
4