Padilla-Padilla v. Gonzales

• Decision Date: 13 September 2006
• Docket Number: No. 03-73964.,No. 02-73627.,02-73627.,03-73964.
• Citation: 463 F.3d 972
• Parties: Jose J. PADILLA-PADILLA; Guadalupe D. Padilla-Enriquez; Adela Enriquez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 972

463 F.3d 972

Jose J. PADILLA-PADILLA; Guadalupe D. Padilla-Enriquez; Adela Enriquez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 02-73627.

No. 03-73964.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2006.

Filed September 13, 2006.

Marc Van Der Hout, San Francisco, CA, for the petitioners.

David V. Bernal and Ernesto H. Molina, U.S. Department of Justice, Washington, DC, for the respondent.

On Petitions for Review from Orders of the Board of Immigration Appeals. Agency Nos. A75-301-560, A75-301-561, A75-301-562.

Before: TASHIMA, W. FLETCHER, and CALLAHAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Based on advice of counsel, the Padillas filed an application for asylum shortly before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA" or "Act"). After the Act's effective date, the former Immigration and Naturalization Service ("INS")¹ initiated removal proceedings against them. Because these proceedings were initiated after the Act's effective date, a ten-year period of continuous presence in the United States was required to qualify for relief from removal rather than the seven-year period that had previously been required to qualify for relief from deportation. The Padillas could not satisfy the ten-year period.

The immigration judge ("IJ") denied the Padillas' application for asylum, and granted them a period of 60 days within which to depart voluntarily, after which an order of removal would be entered if they had not departed. In a "streamlined" order, the Board of Immigration Appeals ("BIA") affirmed the decision of the IJ, but reduced the voluntary departure period to 30 days. The Padillas moved to reopen before the BIA based on ineffective assistance of counsel. The BIA denied the motion.

We have two consolidated petitions for review before us. In No. 02-73627, the Padillas petition for review of the BIA's streamlined decision. In No. 03-73964, the Padillas petition for review of the BIA's denial of their motion to reopen.

We grant the petition for review in No. 02-73627 and remand for further proceedings with respect to voluntary departure. We deny the petition for review in No. 03-73964.

I. Background

Petitioners Jose Juan Padilla-Padilla, Adela Enriquez, and Guadalupe D. Padilla-Enriquez ("the Padillas") are a father, mother, and daughter respectively. They entered the United States without inspection in March 1989. The Padillas have two United States citizen sons (and brothers), Jose and Alejandro Padilla-Enriquez, who were born in the United States. Their ages are 16 and 14 respectively.

On advice of their counsel, Walter Pineda, the Padillas filed an application for asylum on January 30, 1997. The effective date of IIRIRA was approximately two months later, on April 1, 1997. The INS denied the Padillas' asylum application on April 20, 1998. The next day, the INS initiated removal proceedings under IIRIRA by serving a notice to appear ("NTA"). The NTA charged the Padillas as removable pursuant to the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being aliens present in the United States without having been admitted or paroled. On October 7, 1998, the Padillas conceded removability before an IJ and renewed their application for asylum.

On January 7, 1999, the Padillas moved to terminate removal proceedings, arguing that they should be in deportation proceedings instead. Prior to IIRIRA, aliens were placed in either deportation proceedings or exclusion proceedings. IIRIRA combined these two proceedings into a single proceeding, now called removal. See Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). Aliens placed in deportation proceedings under pre-IIRIRA law could seek relief from deportation through a request for suspension of deportation. See id.; see also INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (repealed 1997). Suspension of deportation was available to aliens who: (1) were not being deported for certain enumerated offenses; (2) had been present for a continuous period of seven years; (3) were of good moral character during that period; and (4) the deportation of whom would result in "extreme hardship" to certain enumerated parties. Id. Had the Padillas been placed in deportation proceedings prior to the effective date of IIRIRA, they almost certainly would have been able to satisfy the requirement of seven years' continuous presence.

IIRIRA replaced suspension of deportation with cancellation of removal. The requirements for cancellation of removal under IIRIRA are more stringent than the prior requirements for suspension of deportation. Cancellation of removal is available to aliens who: (1) have been present for a continuous period of at least ten years; (2) have had good moral character during that period; (3) have not been convicted of certain enumerated offenses; and (4) the removal of whom would result in "exceptional and extremely unusual hardship" to certain enumerated parties. INA § 240A(b), 8 U.S.C. § 1229b(b). The Padillas were not eligible for cancellation of removal because they had not been present for a continuous period of at least ten years when the NTA was served on April 21, 1998. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002).

The IJ denied the Padillas' motion to terminate removal proceedings. The IJ subsequently denied the Padillas' application for asylum and granted them a 60-day period of voluntary departure pursuant to INA § 240B, 8 U.S.C. § 1229c. If the Padillas did not voluntarily depart within that period, an order of removal would be entered automatically. Pursuant to its "streamlining" authority, 8 C.F.R. § 1003.1(e)(4),² the Board affirmed the substance of the IJ's order on September 30, 2002. However, the Board also added a "further order" reducing the voluntary departure period from 60 to 30 days.

II. Standard of Review

When the BIA streamlines, we review the substance of the IJ's decision. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003) (as amended). We review purely legal claims de novo. See de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004) (as amended).

III. Petition No. 03-73964

We first address the BIA's denial of the Padillas' motion to reopen based on ineffective assistance of counsel. Based on the advice of their counsel, Walter Pineda, the Padillas filed an application for asylum approximately two months before the effective date of IIRIRA. Competent counsel would have known that this was a very risky thing for the Padillas to do. The strategy was to file an application for asylum that would almost certainly be denied, and then to seek relief from the deportation order that would follow. The obvious problem with this strategy was that deportation—and suspension of deportation— were available only under pre-IIRIRA law. See Jimenez-Angeles, 291 F.3d at 597. In order to qualify for deportation and suspension of deportation, the deportation proceedings had to be initiated before the effective date of IIRIRA, which was only two months after the Padillas filed their asylum application. Id. To say the least, it was highly unlikely that the INS would initiate deportation proceedings within the requisite period.

Predictably, the INS never initiated deportation proceedings. Instead, more than a year after the effective date of IIRIRA, it initiated removal proceedings. As discussed above, eligibility for cancellation of removal requires ten years of continuous presence in the United States, rather than the seven years that had been required for eligibility for suspension of deportation under pre-IIRIRA law. See 8 U.S.C. § 1229b(b)(1)(A). The Padillas could not satisfy the ten-year requirement of § 1229b(b)(1)(A) and were therefore ineligible for cancellation of removal.

Mr. Pineda is well known to us and to others. He is currently charged, in a separate proceeding before The State Bar of California, with twenty-nine counts of incompetence in representing clients and five counts of moral turpitude.³ Unfortunately for the Padillas, our case law precludes relief in this proceeding. In Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir.2005), Mr. Pineda gave the same advice he gave to the Padillas to other aliens, with precisely the same result as in this case. We held in Lara-Torres that there was no violation of due process. Id. at 976. Because we are bound to follow Lara-Torres, we deny petition No. 03-73964.

IV. Petition No. 02-73627

We next address the BIA's streamlined affirmance of the IJ's order of removal and its reduction of the period of voluntary departure from 60 to 30 days.

A. Jurisdiction

The government argues on three grounds that we lack jurisdiction. It argues, first, that we have no jurisdiction to review the BIA's discretionary decision to reduce the period of voluntary departure. See INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B),⁴ and INA § 240B(f), 8 U.S.C. § 1229c(f).⁵ The government acknowledges that we have jurisdiction to review legal and constitutional issues, but argues that the Padillas challenge an exercise of unreviewable discretionary authority. See 8 U.S.C. § 1252(a)(2)(D) ("Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."); Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir.2005). We disagree. The Padillas do not challenge the manner in which discretionary authority is exercised. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002) (as amended). Rather, they challenge the existence of the authority. They...