Martinez-Martinez v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-60626
Summary Calendar
JOSE EZEQUIEL MARTINEZ-MARTINEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A41 272 217
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Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Ezequiel Martinez-Martinez (Martinez), a native and
citizen of Mexico, filed a 28 U.S.C. § 2241 petition in the
district court challenging the Board of Immigration Appeals’ (BIA)
decision affirming the Immigration Judge’s (IJ) denial of relief
under former § 212(c) of the Immigration and Nationality Act and
the BIA’s decision denying Martinez’s motion to reopen based on
ineffective assistance of counsel. The district court transferred
the case to this Court pursuant to the REAL ID Act of 2005 and we
now consider the matter as a petition for review of the BIA’s
*
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this opinion should not be published and is not precedent except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.
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decisions. See Rosales v. Bureau of Immigration and Customs
Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 126
S. Ct. 1055, 163 L. Ed. 2d 882 (2006).
The REAL ID Act generally precludes judicial review of
discretionary decisions of the Attorney General, including the
grant or denial of a waiver of removability. 8 U.S.C.
§ 1252(a)(2)(B)(ii); see Gutierrez-Morales v. Homan, 461 F.3d 605,
609 (5th Cir. 2006). The Act also precludes judicial review of any
removal order based on, inter alia, commission of an aggravated
felony. § 1252(a)(2)(c); see Hernandez-Castillo v. Moore, 436 F.3d
516, 519 (5th Cir. 2006), petition for cert. filed (Mar. 28, 2006)
(No. 05-1251). However, none of these provisions “shall be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review . . . .”
§ 1252(a)(2)(D).
Martinez contends that the BIA erred when it affirmed the IJ’s
denial of his application for § 212(c) relief. Although Martinez
phrases his arguments in legal terms, he is, in essence, seeking
review of the IJ’s discretionary denial of § 212(c) relief. See
Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006).
An IJ’s discretionary denial of relief under § 212(c) does not
present a question of law or a constitutional claim over which this
court has jurisdiction. Marquez-Marquez v. Gonzales, 455 F.3d 548,
561 (5th Cir. 2006). Therefore, we lack jurisdiction to review
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Martinez’s challenge to the BIA’s decision affirming the IJ’s
denial of his application for § 212(c) relief.
Martinez also contends that the BIA erred when it denied his
motion to reopen based on ineffective assistance of counsel.
Martinez argues that he had constitutionally protected liberty and
property interests in his application for § 212(c) relief and,
thus, he was entitled to due process in the adjudication of that
application.
We have not conclusively determined whether an alien has a
constitutional right to effective counsel in removal proceedings.
See Gutierrez-Morales, 461 F.3d at 609. Nevertheless, we have
“stated several times in dicta . . . that an alien’s right to due
process is violated when the representation afforded [him] was so
deficient as to impinge upon the fundamental fairness of the
hearing, and, as a result, the alien suffered substantial
prejudice.” Id. (internal quotation marks and citations omitted).
Even if aliens have a constitutional right to effective
counsel in certain circumstances, Martinez does not allege a
violation of due process. Martinez’s ineffective assistance claim
relates to the denial of his application for § 212(c) relief.
Because § 212(c) relief is available within the broad discretion of
the Attorney General, it is not a right protected by due process.
United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002).
His counsel’s alleged deficiencies merely restricted Martinez’s
chance of obtaining discretionary relief under § 212(c) and,
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therefore, Martinez has not alleged a violation of due process.
See Assaad v. Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004); Lopez-
Ortiz, 313 F.3d at 231. Because Martinez does not present a
constitutional claim, we lack jurisdiction to review his challenge
to the BIA’s denial of his motion to reopen.
Accordingly, the petition for review is dismissed for lack of
jurisdiction.
PETITION DISMISSED.