637 F.3d 85 (2nd Cir. 2011), 07-3796-ag, Luna v. Holder

Docket Nº:07-3796-ag, 08-4840-ag.
Citation:637 F.3d 85
Opinion Judge:POOLER, Circuit Judge:
Party Name:Worklis LUNA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent. Tasmann Anthony Thompson, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General,
Attorney:Worklis Luna, pro se. Tasmann Anthony Thompson, pro se. Carol Federighi, Jennifer R. Khouri, and Brenden P. Hogan, Office of Immigration Litigation, U.S. Department of Justice, for Respondent. Jennifer Chang Newell (Lee Gelernt and Tanaz Moghadam, on the brief), American Civil Liberties Union, fo...
Judge Panel:Before: CALABRESI, POOLER, and CHIN, Circuit Judges.
Case Date:March 03, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 85

637 F.3d 85 (2nd Cir. 2011)

Worklis LUNA, Petitioner,

v.

Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Tasmann Anthony Thompson, Petitioner,

v.

Eric H. HOLDER, Jr., United States Attorney General, [*] Respondent.

Nos. 07-3796-ag, 08-4840-ag.

United States Court of Appeals, Second Circuit.

March 3, 2011

Argued: June 15, 2010.

Page 86

Worklis Luna, pro se.

Tasmann Anthony Thompson, pro se.

Carol Federighi, Jennifer R. Khouri, and Brenden P. Hogan, Office of Immigration Litigation, U.S. Department of Justice, for Respondent.

Jennifer Chang Newell (Lee Gelernt and Tanaz Moghadam, on the brief), American Civil Liberties Union, for Amicus Curiae American Civil Liberties Union.

Before: CALABRESI, POOLER, and CHIN, Circuit Judges.

POOLER, Circuit Judge:

The sole and exclusive means for challenging a final order of removal is to file a petition for review in a federal court of appeals. If a petition for review is filed more than 30 days after the order of removal, the court of appeals lacks jurisdiction over the petition. Here, Worklis Luna and Tasmann Anthony Thompson filed petitions for review after the 30-day deadline, alleging that their constitutional rights were violated because they were prevented from filing timely petitions

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by ineffective assistance of counsel and governmental interference, respectively. Petitioners argue that the 30-day filing requirement, as applied to them, would violate the Suspension Clause if it barred them from raising their constitutional claims through a petition for a writ of habeas corpus or an adequate and effective substitute.

We note at the outset that the petitions before us raise important and difficult issues. On the one hand, Luna and Thompson claim that their efforts to challenge their removal orders have been impeded by the deprivation of their constitutional rights, including the right to due process under the Fifth Amendment. Luna, Thompson, and others like them cannot be left with no forum in which to raise plausible claims of constitutional violations. Hence, the possible foreclosure of habeas relief at issue here raises legitimate Suspension Clause concerns. On the other hand, permitting aliens to assert these claims through habeas may allow those with frivolous claims to delay their removals and inappropriately clog the judicial system. Indeed, in its treatment of habeas and its substitutes, Congress has expressed concern about the abuse of the habeas procedure. In approaching Luna and Thompson's petitions, we have had these two conflicting points very much in mind. In view of the Government's concessions and the structure of the process, we believe that the statutory motion to reopen process before the Board of Immigration Appeals (the " BIA" ), subject to de novo review of legal issues and with equitable tolling and the removal of the departure bar, permits the BIA to readily sort frivolous claims from those deserving a day in court, thus vindicating both values to the fullest extent possible.

We hold that applying the 30-day filing deadline to Petitioners does not violate the Suspension Clause because the statutory motion to reopen process as described herein is an adequate and effective substitute for habeas review. We reach that conclusion based on our further holdings that (1) the statutory motion to reopen process cannot be unilaterally terminated by the Government and (2) agency denials are subject to meaningful judicial review. Accordingly, we dismiss as untimely Petitioners' petitions for review.

I.

A.

In September 2007, Thompson, a native and citizen of Jamaica, was charged in a Notice to Appear with removability pursuant to the Immigration and Nationality Act (the " INA" ) Section 237(a)(2)(A)(ii), based on his convictions for two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, and Section 237(a)(2)(A)(iii), based on his conviction for an aggravated felony. Thompson, appearing pro se before an immigration judge (" IJ" ) in Hartford, Connecticut, requested that the IJ appoint counsel because " this matter has become complex and the respondent never attended any law school, nor is he an attorney." In January 2008, the IJ found him removable on the aggravated felony charge and ordered him removed to Jamaica. Thompson appealed to the BIA, asserting that he was denied his right to counsel and that he was innocent of the crimes underlying his convictions. The BIA dismissed his appeal on April 28, 2008. On August 18, 2008, Thompson filed a motion to reopen, seeking protection under the Convention Against Torture (the " CAT" ). On September 9, 2008, the BIA denied Thompson's motion to reopen, concluding that Thompson had failed to establish a prima facie case for protection under the CAT.

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On October 1, 2008, Thompson filed in this Court a " motion asking for time to appeal" the BIA's April 28, 2008 order. The motion was docketed in this Court as a petition for review. Thompson stated that when the BIA dismissed his appeal, he was detained in the Wyatt Detention Facility in Central Falls, Rhode Island and was " unable to get [his] legal documents at this facility[.] ITS [sic] PROHIBITED." In response, the Government filed a motion to dismiss the petition for review as untimely.

In March 2009, this Court learned that the Government had removed Thompson to Jamaica. Two months later, the Government acknowledged that this Court retains jurisdiction over the petition despite Thompson's removal. See Nken v. Holder, __ U.S. __, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009) (" Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal." ). The Government, however, maintained that the petition should be dismissed as untimely.

B.

In December 2006, Luna, a native of the Dominican Republic, was charged in a Notice to Appear with removability pursuant to INA Section 237(a)(2)(B)(i), based on his conviction for a controlled substance violation, and Section 237(a)(2)(A)(iii), based on his conviction for an aggravated felony. In a hearing before an IJ in Napanoch, New York, Luna, appearing pro se, argued that he was not removable under Section 237 of the INA because he was a citizen of the United States. Luna argued that he was a dual citizen of the Dominican Republic and the United States, and that he had derivative U.S. citizenship based on his father's naturalization. In May 2007, the IJ determined that Luna had not derived U.S. citizenship from his father, that his removability had been established by clear and convincing evidence, that he was statutorily ineligible for various forms of relief, and that he had not established a prima facie claim for deferral of removal under the CAT. Accordingly, the IJ ordered Luna removed to the Dominican Republic. Luna, detained at the Buffalo Federal Detention Facility in Batavia, New York, appealed to the BIA through counsel. By an order issued July 20, 2007, the BIA dismissed Luna's appeal.

On August 9, 2007, Luna's attorney sent a letter to Luna's mother, stating that he did not believe that he could make an argument in a petition for review that would warrant reversal of the BIA's decision. Luna's attorney also stated that the deadline for filing a petition for review was August 20, 2007. However, Luna stated that his attorney did not send him a letter and he did not receive the letter the attorney sent to his mother until August 25, 2007— five days after the filing deadline. Nor, Luna says, did his attorney otherwise inform him that he would not file a petition for review. On September 5, 2007, sixteen days after the filing deadline and eleven days after allegedly receiving his attorney's letter, Luna, pro se, petitioned for review of the BIA's decision. Luna sought " an enlargement of time to file a petition for review" because of his former attorney's " neglect, sudden loss of interest, and giving [Luna the] false impression that he would submit all the necessary papers and continue to represent [Luna]." The government moved to dismiss the petition for review as untimely. In response, Luna submitted his former attorney's August 9 letter to his mother and asserted that " prior counsel['s] lack of proper communication kept petitioner from filing his petition

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on time." Luna argued that he " should have been notified by counsel at his place of detention to make sure that [he] received the correspondence in a timely manner, which would [have] allow[ed him] to file his petition within the thirty-day filing deadline."

C.

In February and August 2009, another panel of this Court ordered the appointment of pro bono counsel as amicus curiae and directed briefing on the following issue:

[W]hether there is merit to an as-applied Suspension Clause challenge for a petitioner who lacked any reasonable opportunity to file a petition for review during the 30-day filing period because of circumstances created by the government, or because of attorney error, in light of our opinion in Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2008).

The American Civil Liberties Union's (" ACLU" ) Immigrants' Rights Project was subsequently appointed as amicus counsel in both appeals.

In its briefs to the Court, the ACLU argued that the 30-day filing deadline would violate the Suspension Clause if it barred Petitioners from filing a writ of habeas corpus or seeking adequate and effective relief.

In response, the Government argued that the 30-day deadline to file a petition for review, as applied to Luna and Thompson, did not...

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