Debeatham v. Holder

• Citation: 602 F.3d 481
• Decision Date: 28 April 2010
• Docket Number: No. 09-0205-ag.,09-0205-ag.
• Parties: Winston Andrew DEBEATHAM, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

602 F.3d 481

Winston Andrew DEBEATHAM, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.^*

No. 09-0205-ag.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2010.

Decided: April 28, 2010.

Jennifer Oltarsh, Oltarsh & Associates, P.C., New York, NY, for petitioner.

Yanal Yousef, Trial Attorney, Office of Immigration Litigation (Tony West, Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, D.C., for respondent.

Before MINER, CABRANES, and WESLEY, Circuit Judges.

PER CURIAM:

Petitioner Andrew Debeatham ("petitioner" or "Debeatham"), a native and citizen of Jamaica, seeks review of a December 15, 2008 decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen his removal proceedings. Petitioner argues, as he did before the BIA, that he is entitled to reopening based on the ineffective assistance of his prior counsel. We hold that petitioner failed to comply with the requirements of In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988), in asserting one of counsel's alleged errors and failed to show prejudice arising from the remaining alleged errors. Accordingly, we deny the petition for review.

BACKGROUND

Debeatham was charged with being removable from the United States in December of 2003, based on prior convictions for, among other things, possession of a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i) (providing that any alien convicted of violating a law relating to a controlled substance is deportable); id. § 1227(a)(2)(A)(ii) (providing that any alien convicted of two or more crimes involving moral turpitude is deportable). Debeatham appeared before an Immigration Judge ("IJ") who, on July 5, 2005, found him to be removable and ineligible for relief under the former 8 U.S.C. § 1182(c) (1994).¹ The IJ also declined to grant petitioner cancellation of removal pursuant to 8 U.S.C. § 1229b(a).² The IJ determined that Debeatham was ineligible for cancellation of removal as a matter of law because he had been convicted of an aggravated felony. In the alternative, the IJ denied cancellation of removal as a matter of discretion in the event that it was later determined that Debeatham was eligible for such relief as a matter of law. Accordingly, Debeatham was ordered removed to Jamaica.

Debeatham moved for reconsideration of the IJ's decision only insofar as the IJ had found that Debeatham had been convicted of an aggravated felony. That motion was summarily denied by the IJ on August 25, 2005. Debeatham then appealed the IJ's decision to the BIA only insofar as it concerned cancellation of removal. In a decision dated September 18, 2007, the BIA found that Debeatham was statutorily eligible for cancellation of removal but affirmed the IJ's decision on the alternate ground that Debeatham's circumstances did not warrant granting cancellation of removal as a matter of discretion.

Debeatham asserts that Andrew Crumbie ("Crumbie"), his attorney during the proceedings before the IJ and the initial appeal to the BIA, did not inform him of the BIA's adverse decision until April 14, 2008, and, as a result, he missed the opportunity to appeal that decision to this Court. Crumbie asserts that he did not receive timely notice of the BIA's decision and that if he had he would have taken appropriate steps to appeal it.

On June 9, 2008, Debeatham moved to reopen his removal proceedings, arguing that Crumbie was ineffective in (1) failing to appeal from the IJ's determination that Debeatham was ineligible for relief under the former 8 U.S.C. § 1182(c) (1994); (2) failing to raise certain deficiencies in the IJ's balancing of the equities with respect to petitioner's application for cancellation of removal; and (3) failing to inform petitioner of the BIA's September 18, 2007 decision and thereby depriving him of the opportunity to appeal that decision. The BIA denied the motion to reopen and Debeatham timely petitioned for review of that decision.

DISCUSSION

Federal regulations, promulgated by the Attorney General, provide that motions to reopen are committed to the discretion of the BIA. 8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to reopen ... is within the discretion of the Board...."). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546, stripped federal courts of jurisdiction to review many decisions committed to the agency's discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii) (providing that "no court shall have jurisdiction to review... a decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of asylum"). The Supreme Court recently clarified, however, that federal courts retain jurisdiction to review denials of motions to reopen, which are committed to the agency's discretion by regulation rather than by statute. See Kucana v. Holder, ___ U.S. ___, ___, 130 S.Ct. 827, 840, ___ L.Ed.2d ___, ___ (2010) ("While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so. Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review."). Accordingly, we continue to review denials of motions to reopen for "abuse of discretion," as we did before Kucana. See id. at 834 (noting that federal courts have long reviewed administrative decisions denying motions to reopen for abuse of discretion (citing I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992))); see also Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir.2006) ("We review the BIA's denial of a motion to reopen ... for abuse of discretion."). "The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.2009) (internal quotation marks omitted).

Where a motion to reopen is based on a claim of ineffective assistance of counsel, we require the alien claiming ineffectiveness to comply with the requirements set forth by the BIA in In re Lozada, 19 I. & N. Dec. at 639. See Jiang v. Mukasey, 522 F.3d 266, 270 (2d Cir.2008). Under Lozada, an alien claiming ineffective assistance of counsel

must submit: (1) an affidavit setting forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.

Twum v. I.N.S., 411 F.3d 54, 59 (2d Cir. 2005) (quoting Esposito v. I.N.S., 987 F.2d 108, 110-11 (2d Cir.1993)).

We note that, in an opinion issued in January 2009, the United States Attorney General overruled Lozada and established a new framework for granting, as a matter of administrative discretion, motions to reopen based on claims of ineffective assistance of counsel. In re Compean, 24 I. & N. Dec. 710, 712-14 (BIA 2009) (Compean I). In June 2009, the Attorney General reversed course and vacated the Compean I opinion, declaring that he did "not believe that the process used in Compean I resulted in a thorough consideration of the issues involved." In re Compean, 25 I. & N. Dec. 1, 2 (BIA 2009) (Compean II). In Compean II, the Attorney General directed the Acting Director of the Executive Office for Immigration Review to "initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration." Id. The Attorney General also directed BIA judges to apply pre-Compean I standards to all motions to reopen until new procedures are established. Id. at 3. Accordingly, we apply the Lozada framework to this petition, as did the BIA below.

In addition to complying with Lozada's procedural requirements, an alien claiming ineffective assistance of counsel must also show prejudice resulting from counsel's alleged deficiencies. See Lozada, 19 I. & N. Dec. at 638; see also Jiang, 522 F.3d at 270. Because immigration proceedings are of a civil rather than criminal nature, aliens in removal proceedings "enjoy no specific right to counsel" under the Sixth Amendment to the Constitution. Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir.2005). Rather, claims of ineffective assistance of counsel must be grounded in the Fifth Amendment's general right to due process of law. See id. "Thus, in order to prevail on an ineffectiveness claim, an alien must show that his counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing." Id. (internal quotation marks omitted). We agree with the BIA that Debeatham has failed to establish that he is entitled to reopening under Lozada and our precedent.

First, to the extent that his claim of ineffectiveness concerns 8 U.S.C. § 1182(c) relief, we conclude that petitioner failed to comply with requirements of Lozada. As the BIA explained, petitioner "has failed to offer any evidence of the nature of his agreement with Crumbie regarding the handling of that issue, that he notified Crumbie of Crumbie'salleged failure to argue his § 1182(c) eligibility, and that he filed a complaint with the appropriate disciplinary authorities concerning Crumbie's handling of that...