Luis Coelho v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
FEB 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MANUEL COELHO, No. 12-72376
AKA Luis Alamo Coelho,
Agency No. A030-816-201
Petitioner,
v.
MEMORANDUM*
LORETTA LYNCH,
Attorney General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
Submitted January 8, 2016**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
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Luis Manuel Coelho, a native and citizen of Portugal, petitions for review of
an order of the Board of Immigration Appeals (BIA) denying his motion to reopen
immigration proceedings. His motion to reopen asserted ineffective assistance of
counsel and eligibility for a waiver of deportation under former
§ 212(c) of the Immigration and Nationality Act (INA).
Coelho argues the BIA’s denial of his motion to reopen was error on the
grounds that his concession of deportability was not binding because it resulted
from ineffective assistance of counsel, that the government’s documentary
evidence presented at the hearing was insufficient to establish deportability, and
that he is entitled to a § 212(c) waiver of deportability under I.N.S. v. St. Cyr, 533
U.S. 289 (2001).
We review for abuse of discretion the BIA’s denial of a motion to reopen,
and reverse only if the Board acted arbitrarily, irrationally, or contrary to law.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We review the
Board’s factual findings for substantial evidence, Bhasin v. Gonzales, 423 F.3d
977, 983 (9th Cir. 2005), and questions of law, including claims of ineffective
assistance, de novo. Mohammed, 400 F.3d at 791-92.
In the context of a removal proceeding, ineffective assistance of counsel
amounts to a violation of due process if “the proceeding was so fundamentally
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unfair that the alien was prevented from reasonably presenting his case.”
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (per curiam)
(quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)). To prevail, a
petitioner must first demonstrate that counsel failed to perform with sufficient
competence, and second that he was prejudiced by counsel’s deficient
performance. Id.; see Mohammed, 400 F.3d at 793-94. To demonstrate prejudice,
the petitioner need not show that counsel’s ineffectiveness necessarily changed the
outcome, but rather that counsel’s performance “was so inadequate that it may
have affected the outcome of the proceedings.” Mohammed, 400 F.3d at 793-94
(quoting Oritz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)).
Although Coelho’s allegations regarding his representation at the
deportation hearing are troubling, he cannot show that any prejudice resulted from
such representation. First, even assuming counsel failed to perform with sufficient
competence, and thus that Coelho’s concessions were not binding, the
government’s documentary evidence alone proved his deportability. Coelho was
charged with deportability on the basis of his conviction for a controlled substance
offense, an offense which the government also asserted qualified as an aggravated
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felony. See 8 U.S.C. § 1227(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(A)(iii).1 To
establish deportability on these grounds, the government must show that Coelho’s
state conviction for a controlled substance offense involved a substance listed in
Section 102 of the federal Controlled Substances Act (CSA). Ragasa v. Holder,
752 F.3d 1173, 1175 (9th Cir. 2014). The alleged drug at issue in this case,
methamphetamine, undisputedly qualifies as a controlled substance under federal
law. See 21 U.S.C. § § 802(6), 812(a)(3) sched. III; United States v. Valdavinos-
Torres, 704 F.3d 679, 684 (9th Cir. 2012). And the documentary evidence
submitted by the government – including the felony complaint, minute order, and
abstract of judgment – is sufficient under the modified categorical approach to
establish that Coelho plead guilty to possession with the purpose of sale of
methamphetamine. See United States v. Leal-Vega, 680 F.3d 1160, 1167-69 (9th
Cir 2012). Accordingly, the government met its burden to prove Coelho’s
deportability, and the BIA did not err in so concluding.
Second, the Board properly determined that Coelho was ineligible for a
waiver of deportability under former § 212(c) of the INA. At the time Coelho pled
guilty in June 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA)
1
At the time Coelho was charged in August 1996, these sections were
codified at § 241(a)(2)(B)(i) and § 241(a)(2)(A)(iii) of the INA, respectively. For
convenience, this memorandum refers to each provision by its current citation.
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had eliminated § 212(c) relief for legal permanent residents, like Coelho, convicted
of an aggravated felony or a drug trafficking offense. See AEDPA, Pub. L. No.
104-132, § 440(d), 110 Stat. 1214, 1276-79 (1996). Coelho relies on I.N.S. v. St.
Cyr, 533 U.S. 289 (2001) for the proposition that § 212(c) should not be
retroactively applied in his case. Such reliance is misplaced. In that case, as here,
the alien pled guilty in state court to an offense that made him deportable.
However, unlike Coelho, the alien in St. Cyr would have been eligible for a waiver
of deportation under § 212(c) at the time of his guilty plea. Id. at 293. As such,
the Court’s holding that § 212(c) relief is available for aliens “whose convictions
were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of their plea
under the law then in effect,” does not apply in cases like this one, where the alien
pled guilty after AEDPA’s effective date, and thus was ineligible for § 212(c) at
the time of his plea. Id. at 326; see Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1054 (9th Cir. 2005) (rejecting petitioner’s argument that “AEDPA’s elimination
of § 212(c) relief for all aggravated felons cannot be applied to him” because
petitioner “pled guilty after the effective date of AEDPA.”).
For these reasons, even assuming counsel failed to perform with sufficient
competence, the government met its burden to prove Coelho’s deportability, and
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Coelho was ineligible for a § 212(c) waiver because he pleaded guilty to a
deportable offense after the effective date of AEDPA. There is neither evidence
nor allegation that any other avenue of relief from deportation was or is open to
Coelho. Thus, Coelho cannot show any prejudice resulting from the alleged
ineffective assistance of counsel.
PETITION DENIED.