Assaad v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 9, 2004
July 19, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60201
BASSEL NABIH ASSAAD
Petitioner
v.
JOHN ASHCROFT, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM:
Bassel Nabih Assaad petitions this court to review the Board
of Immigration Appeals’s decision denying his motion to reopen.
For the following reasons, we dismiss the petition for review.
I. BACKGROUND
Assaad, a Syrian citizen, entered the United States as a
nonimmigrant visitor in 1993. He later married a U.S. citizen,
and, in June 1995, the Immigration and Naturalization Service
(INS) granted his application for conditional resident status
under 8 U.S.C. § 1186a (2000). Assaad divorced his wife in
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January 1996 and petitioned the INS for a good-faith marriage
waiver, see § 1186a(c)(4)(B), which would entitle him to
permanent resident status despite the fact that he was no longer
married to a U.S. citizen. The INS denied the petition and
terminated Assaad’s conditional resident status. On May 17,
1997, the INS initiated removal proceedings by serving Assaad
with a Notice to Appear, charging him with being subject to
removal for overstaying his permission to remain in the United
States. See 8 U.S.C. § 1227(a)(1)(B) (2000).
Before the Immigration Judge (IJ), Assaad denied the
allegations supporting his deportability and requested review of
the INS’s denial of his petition for a good-faith marriage
waiver. Assaad presented documentary and testimonial evidence
that he believed supported his claim that he entered into his
marriage in good faith. The IJ denied Assaad’s waiver request,
however, finding that Assaad had not proven that he entered into
his marriage in good faith.
Assaad hired a second attorney to handle his appeal to the
Board of Immigration Appeals (BIA). This new attorney submitted
Assaad’s appeal one week past the filing deadline. Thus, the BIA
dismissed the appeal as untimely on September 19, 2000, without
addressing the merits of Assaad’s good-faith marriage waiver
application. Assaad contends that his attorney never notified
him that the appeal was denied, a fact he discovered in January
2001 only after learning that the INS was seeking his arrest.
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On February 12, 2001, after hiring a third attorney, Assaad
filed a motion to reopen his immigration proceedings with the IJ
claiming that his second attorney had been constitutionally
ineffective. The INS opposed Assaad’s motion to reopen, noting
that it was not filed within the 90-day window provided by
statute and BIA regulations. See id. § 1229a(c)(6)(C)(i) (2000);
8 C.F.R. § 3.2(c)(2) (2001). Assaad responded that the IJ could
nevertheless reopen the case on his own motion in light of the
exceptional situation presented by his attorney’s
ineffectiveness. See 8 C.F.R. § 3.2(a). The IJ declined to
exercise this power and instead denied Assaad’s motion to reopen
as untimely.
Assaad appealed the IJ’s decision to the BIA, arguing that
the time limit for filing the motion to reopen should have been
tolled by his attorney’s failure to inform him that his initial
appeal to the BIA had been dismissed. Ultimately, the BIA
dismissed Assaad’s motion to reopen after concluding that, even
though Assaad met the BIA’s procedural requirements for an
ineffective-assistance-of-counsel claim, see In re Lozada, 19 I.
& N. Dec. 637, 639 (BIA 1988), he was not entitled to relief
because he had provided no evidence in his motion to reopen
showing that he was prejudiced by his attorney’s failure to file
the initial BIA appeal in a timely manner. In re Assaad, 23 I. &
N. Dec. 553 (BIA 2003). Assaad now petitions this court for
review of the BIA’s denial of his motion to reopen.
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II. DISCUSSION
As an initial matter, the government argues that we lack
jurisdiction to review the BIA’s denial of Assaad’s motion to
reopen under 8 U.S.C. § 1252(a)(2)(B)(ii),1 which bars judicial
review of “any . . . decision or action of the Attorney General
the authority for which is specified under this subchapter to be
in the discretion of the Attorney General.” According to the
government, this section bars federal court review of Assaad’s
petition because the BIA has complete discretion in deciding
whether to grant an alien’s motion to reopen. See INS v.
Doherty, 502 U.S. 314, 323 (1992) (“The granting of a motion to
reopen is . . . discretionary, and the Attorney General has
‘broad discretion’ to grant or deny such motions.” (citations
omitted)); 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a
motion to reopen . . . is within the discretion of the Board.”).
Although Assaad concedes that we have, in the past, afforded
the BIA wide discretion in addressing motions to reopen, see,
e.g., Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002), he does
not agree that Congress intended to strip federal courts of the
1
Congress severely restricted federal court jurisdiction
over numerous categories of BIA decisions through § 306(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), see Pub. L. No. 104-208, 110 Stat. 3009-546, -607
to -612 (codified at 8 U.S.C. § 1252 (2000)). These permanent
rules govern judicial review of proceedings commencing after
April 1, 1997. See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th
Cir. 2004). Since the INS initiated removal proceedings against
Assaad on May 17, 1997, § 1252’s provisions apply to this case.
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power to review the BIA’s denials of these motions. For example,
he notes that § 1252(b)(6), which instructs that “any review
sought of a motion to reopen . . . shall be consolidated with the
review of the order [of removal],” would be rendered meaningless
by the government’s interpretation of § 1252(a)(2)(B)(ii). His
position finds further support in Medina-Morales v. Ashcroft, 371
F.3d 520 (9th Cir. 2004). There, the Ninth Circuit held that the
plain language of § 1252(a)(2)(B)(ii) does not bar judicial
review of motions to reopen because the BIA’s discretion to grant
or to deny these motions “derives solely from regulations
promulgated by the Attorney General, rather than from a statute.”
Id. at 528 (citations and internal quotation marks omitted).
Under the facts of this case, we need not resolve the thorny
question whether § 1252(a)(2)(B)(ii) precludes judicial review of
all motions to reopen, however. Importantly, even if we were to
assume that § 1252(a)(2)(B)(ii) does not, by its terms, generally
bar judicial review of motions to reopen, we would still conclude
that we lack jurisdiction over Assaad’s petition for review.
As at least three other circuits have explained, Congress
explicitly granted federal courts the power to review “final
order[s] of removal” in § 1252(a)(1), and “[i]mplicit in this
jurisdictional grant is the authority to review orders denying
motions to reopen any such final order.” Patel v. United States
Attorney General, 334 F.3d 1259, 1261 (11th Cir. 2003); accord
Chow v. INS, 113 F.3d 659, 664 (7th Cir. 1997), abrogated on
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other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998);
Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997). Yet, just
as our power to review a final order is circumscribed by
§ 1252(a)(2)’s various jurisdiction-stripping provisions, our
“jurisdiction to entertain an attack on that order mounted
through filing of a motion to reopen” is equally curtailed.
Patel, 334 F.3d at 1262 (citing cases); accord Dave v. Ashcroft,
363 F.3d 649, 652 (7th Cir. 2004); cf. Mayard v. INS, 129 F.3d
438, 439 (8th Cir. 1997) (applying the IIRIRA’s transitional
rules). In other words, “where a final order of removal is
shielded from judicial review” by a provision in § 1252(a)(2),
“so, too, is [the BIA’s] refusal to reopen that order.” Patel,
334 F.3d at 1262.
Applying this principle to the case at hand, it is clear
that § 1252 deprives this court of jurisdiction over the BIA’s
denial of Assaad’s motion to reopen. In its final order of
removal, the BIA affirmed the IJ’s finding that Assaad is not
entitled to a good-faith marriage waiver of his removability
under § 1186a(c)(4)(B). There is no question that, had Assaad
directly petitioned this court for review of the BIA’s final
order, § 1252(a)(2)(B)(ii) would have barred our jurisdiction
over his appeal. See Urena-Tavarez v. Ashcroft, 367 F.3d 154,
160 (3d Cir. 2004) (holding that “[s]ection 1252(a)(2)(B)(ii)
clearly precludes judicial review of decisions under section
1186a(c)(4)” because the statute specifies that those decisions
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are purely discretionary). Therefore, because this court would
not have had the authority to review a direct petition, we hold
that Assaad cannot manufacture jurisdiction simply by petitioning
this court to review the BIA’s denial of his motion to reopen.
Nevertheless, before we may conclude that the IIRIRA’s
permanent rules completely foreclose our jurisdiction over
Assaad’s motion to reopen, we must first determine whether the
ineffective-assistance-of-counsel argument in his motion to
reopen presents a “substantial constitutional claim.” See
Balogun v. Ashcroft, 270 F.3d 274, 278 n.11 (5th Cir. 2001)
(observing that courts “retain jurisdiction to consider . . .
substantial constitutional claims,” even when the jurisdiction-
stripping provisions of immigration law purport to deprive the
courts of jurisdiction); see also Dave, 363 F.3d at 652. This
circuit has yet to decide whether an alien has a constitutional
right to effective counsel in removal proceedings, see, e.g.,
Miranda-Lores v. INS, 17 F.3d 84, 85 n.1 (5th Cir. 1994);
however, dicta from our previous cases indicate that while the
Sixth Amendment does not afford aliens such a right, an
attorney’s ineffective assistance may implicate the Fifth
Amendment’s due process guarantee if the “representation afforded
[the alien] . . . was so deficient as to impinge upon the
fundamental fairness of the hearing.” Paul v. INS, 521 F.2d 194,
198 (5th Cir. 1975).
Notwithstanding this possibility, Assaad’s motion to reopen
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does not allege a violation of his Fifth Amendment right to due
process because “the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a
liberty interest.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146
(11th Cir. 1999) (citing Conn. Bd. of Pardons v. Dumschat, 452
U.S. 458, 465 (1981)); accord Nativi-Gomez v. Ashcroft, 344 F.3d
805, 808 (8th Cir. 2003); see also Munoz v. Ashcroft, 339 F.3d
950, 954 (9th Cir. 2003) (“Since discretionary relief is a
privilege . . . , denial of such relief cannot violate a
substantive interest protected by the Due Process clause.”); cf.
Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (“[A]
statute which ‘provides no more than a mere hope that the benefit
will be obtained . . . is not protected by due process.’”
(alteration in original) (quoting Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 11 (1979))). Assaad’s
ineffective-assistance claim hinges on his attorney’s failure to
file a timely appeal from the IJ’s denial of his application for
a good-faith marriage waiver of his removability under
§ 1186a(c)(4)(B). As we explained above, an alien who believes
he entered into his marriage with a U.S. citizen in good faith is
not entitled to receive a waiver of his removability. Rather, as
the statute expressly states, the decision whether to grant this
relief is entirely “[with]in the Attorney General’s discretion.”
§ 1186a(c)(4); see Nyonzele v. INS, 83 F.3d 975, 979-81 (8th Cir.
1996). Accordingly, because Assaad’s attorney’s allegedly
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deficient performance merely restricted his chances of receiving
a discretionary waiver of his removability, we conclude that he
has not alleged a violation of his due process rights.2 Cf.
Mejia Rodriguez, 178 F.3d at 1147 (“[W]here a statute or
regulation does not limit the executive’s discretion to award
relief, an expectancy of such relief does not give rise to a
liberty interest protected by the Due Process Clause.”); Nativi-
Gomez, 344 F.3d at 809 (“However broadly and amorphously the
concept of constitutionally protected liberty interests has been
defined . . . it does not include statutorily created relief that
is subject to the unfettered discretion of a governmental
authority.”). Assaad’s petition for review, therefore, does not
present a “substantial constitutional claim.”
III. CONCLUSION
For the foregoing reasons, we DISMISS Assaad’s petition for
review for lack of jurisdiction.
2
Importantly, we do not today decide that the Fifth
Amendment guarantees aliens the right to the effective assistance
of counsel in immigration proceedings. Rather, we simply hold
that, even assuming such a constitutional right exists, Assaad’s
petition for review does not allege a violation of that right.
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