473 F.3d 162 (5th Cir. 2006), 04-60871, Mai v. Gonzales

Docket Nº:04-60871.
Citation:473 F.3d 162
Party Name:Thuy-Xuan MAI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
Case Date:December 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 162

473 F.3d 162 (5th Cir. 2006)

Thuy-Xuan MAI, Petitioner,

v.

Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 04-60871.

United States Court of Appeals, Fifth Circuit.

December 13, 2006

Page 163

Martha E. Garza, Bellaire, TX, Thomas F. Perkinson (argued), University of Houston Law Center, Houston, TX, for Petitioner.

Andrew Cunningham MacLachlan (argued), U.S. Dept. of Justice, Civ. Div. Immigration Litigation, David V. Bernal, Thomas Ward Hussey, Director, Alberto R. Gonzales, U.S. Dept. of Justice, Washington, DC, Kenneth L. Pasquarell, Acting Dist. Director, U.S. I.N.S., San Antonio, TX, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

On Petition for Review From a Final Order of the Board of Immigration Appeals

Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge.

Thuy-Xuan Mai ("Mai") petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen. Because we find that the BIA abused its discretion in denying Mai's petition on the basis that his counsel was not ineffective, we remand for a determination whether Mai was prejudiced by his counsel's acts.

I.

Mai is a native and citizen of Vietnam who originally entered the United States as a humanitarian refugee under the Immigration and Nationalization Act (INA) § 207, 8 U.S.C. § 1157, and who became a legal permanent resident in 1987. In 1992, Mai pled guilty to a first-degree felony burglary of a habitation. In March 2001, Mai sought admission to the United States through the port of entry at Laredo, Texas, where he allegedly claimed to be a naturalized citizen of the United States. He was detained and ultimately charged as being subject to removal under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000) for a crime involving moral turpitude and INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii)(2000) for making a false claim of citizenship.

During a removal hearing at which no interpreter was present, Mai's counsel admitted each of the allegations set forth in the Notice to Appear ("NTA"), including

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an allegation that Mai made a false claim to citizenship. None of the allegations were read out loud -- counsel simply admitted to them collectively. Mai was never directly questioned during this hearing. During a subsequent hearing before a different Immigration Judge ("IJ"), Mai's counsel attempted to withdraw the prior admission that Mai had made a false claim to citizenship. When Mai was questioned directly and in the presence of an interpreter, he asserted that he had never made a false claim to citizenship. He offered the testimony of witnesses and the affidavits of witnesses who could not be present, attesting that he had never made a claim to false citizenship during the border crossing. However, the IJ refused to let Mai withdraw the admissions made by his attorney, and sustained the charges in the notice to appear. The IJ sustained the false citizenship claim charge solely on the basis of Mai's attorney's admission, as the government provided no evidence on that claim. The BIA affirmed without opinion. Represented by new counsel, Mai filed a timely motion to reopen his removal proceedings claiming that his counsel in those proceedings was ineffective. He sought to have his case reopened so that he could (1) withdraw his admission to making a false claim to citizenship and apply for a waiver of inadmissability under former § 212(c); (2) apply for a § 212(c) waiver and cancellation of removal pursuant to § 240A; and (3) apply for withholding, asylum, and relief under the Convention Against Torture. The BIA denied Mai's motion to reopen and he timely appealed to this court.

II.

Our jurisdiction is governed by 8 U.S.C. § 1252. On May 11, 2005, the President signed the REAL ID Act of 2005, which amended Section 242 of the INA, 8 U.S.C. § 1252, to permit judicial review of "constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in...

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