Contreras v. Attorney Gen. of the United States

• Decision Date: 04 January 2012
• Docket Number: No. 10–4235.,10–4235.
• Citation: 665 F.3d 578
• Parties: Margarito CONTRERAS, a/k/a Margarito Contera Flores; Norma Contreras, a/k/a Norma Perez Merito, Petitioners v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

665 F.3d 578

Margarito CONTRERAS, a/k/a Margarito Contera Flores; Norma Contreras, a/k/a Norma Perez Merito, Petitioners

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–4235.

United States Court of Appeals, Third Circuit.

Argued Nov. 15, 2011.Filed: Jan. 4, 2012.

Elizabeth C. Surin, Esq., Thomas C. Brannen, Esq., [Argued], Surin & Griffin, Philadelphia, PA, for Petitioners.

Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Cindy S. Ferrier, Esq., Kate Deboer Balaban, Esq., Matt A. Crapo, Esq., [Argued], United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: RENDELL and AMBRO, Circuit Judges and JONES, II,^* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

This immigration case requires us to decide, among other things, whether the Fifth Amendment's Due Process Clause guarantees an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. We hold that it does not, and thus deny the petition for review.

I. Background

Petitioners Margarito Contreras and his wife Norma, both natives and citizens of Mexico, entered the United States unlawfully in 1993 and 1998, respectively. Since 2000, Margarito has been seeking employment-based permanent residency in the United States, i.e., a “green card.” This long, complex process requires submitting several applications with supporting documentation to the United States Department of Labor (“DOL”) and the United States Customs and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”). See Khan v. Att'y Gen., 448 F.3d 226, 228 n. 2 (3d Cir.2006); Matter of Rajah, 25 I. & N. Dec. 127, 130–33 (BIA 2009).

The process involves three essential steps. First, an alien's employer files a Form ETA–750 labor certification application with the DOL on the alien's behalf. The DOL will approve the application only if, among other things, there are not sufficient United States workers “able, willing, qualified ... and available” to perform the job. 8 U.S.C. § 1182(a)(5)(A)(i)(I).

Second, if the DOL approves the labor certification application, the employer files it along with a Form I–140 visa petition with the USCIS. 8 U.S.C. § 1154(a)(1)(F). Among other things, the employer must prove that it can afford to pay the alien the proffered wage from the time it filed the labor certification application until the time the alien obtains lawful permanent residency. 8 C.F.R. § 204.5(g)(2). If the USCIS approves the visa petition, then it determines the alien's preference classification for a visa and assigns the alien a visa number. Employment-based visas are subject to numerical restrictions controlled by the State Department. 8 U.S.C. § 1153(g).

Third and finally, once a visa is “immediately available,” the alien applies for a status adjustment by filing a Form I–485 status adjustment application. 8 U.S.C. § 1255(i). If that application is approved, then the alien becomes a lawful permanent resident and the DHS issues the alien a green card.

An individual like Margarito, who would not ordinarily qualify for lawful permanent residency because he entered the United States without inspection, may nonetheless apply if, among other things, he is the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001. See 8 U.S.C. § 1255(i).

Unfortunately, the Contrerases' former immigration attorney, Tahir Mella (who was not appellate counsel before this Court) provided incompetent, and at times ethically questionable, representation throughout Margarito's visa petition process.

In April 2001, Mella prepared a labor certification application on behalf of Margarito's long-time employer, Barrels Italian Foods and Restaurant, and filed it with the DOL before the April 30 statutory deadline. For reasons unknown, the agency waited more than five years before approving the application in August 2006. Mella then filed a visa petition with the USCIS in January 2007. Ten months after that, in November 2007, the USCIS denied the petition because Barrels failed to prove that it could afford to pay Margarito the proffered wage. The USCIS's written decision, which it mailed to Mella's office, indicated that Barrels could appeal the visa petition denial but that any appeal must be filed within 33 days. None was ever filed. According to Mella, he did not file an appeal because Barrels “pulled out” in December 2007. To the contrary, the owner of Barrels claims that she has “always been willing to sponsor Margarito Contreras.”

In January 2008, well after the 33–day appeal window had closed, Margarito met with Mella to discuss his options. Mella told him that for $1,000 he could file a “motion to reopen” the visa petition. Margarito agreed. At some point, however, Mella instead decided to file a motion to reconsider. Notably, he neglected to mention to Margarito that the 30–day time limit to file a motion to reconsider had also passed, see 8 C.F.R. § 103.5(a), but Mella accepted the $1,000. In March 2008 Mella finally filed an untimely motion to reconsider the USCIS's denial of the visa petition with the DHS, almost four months after the USCIS denied the petition and two months after Margarito paid him the $1,000. The outcome of that motion (or when it was decided) is not evident from the record.

Shortly after Mella agreed to file a motion to reopen, the DHS began removal proceedings against the Contrerases, charging them with being present unlawfully in the United States. See 8 U.S.C. § 1182(a)(6)(A)(i). Mella agreed—for another $5,500—to represent them at the removal proceedings. He delegated that representation, however, to others in his office. This delegation was, according to the Contrerases, contrary to Mella's agreement to appear personally in immigration court.

To make matters worse, the attorney Mella sent to the first removal hearing “might not [have been] fully aware of the immigration laws,” as the Immigration Judge (“IJ”) later explained charitably.¹ Counsel acknowledged the denial of Margarito's visa petition and suggested that a timely appeal had been filed even though it had not. After further questioning, however, the IJ sensed that even if the Contrerases had filed an appeal, it might not have been timely. Thinking her clients had no other options, counsel informed the IJ that her clients would be applying for voluntary departure. The IJ thought the Contrerases would be “shocked and confused” if she entered an order for voluntary departure, so she continued the case for a second time to allow counsel to prepare. The IJ noted that she would “probably not” continue the case again unless the DHS agreed or the Contrerases could show that a timely appeal of the denied employment-based visa petition had been filed.

At the next (and final) hearing in April 2008, yet another attorney from Mella's firm represented the Contrerases. This new attorney indicated that the sole relief sought was voluntary departure, which the IJ granted. One day before their period of voluntary departure expired, the Contrerases—through their current counsel—filed a motion to reopen due to prior ineffective assistance of counsel. The IJ denied that motion.²

On appeal, the Board of Immigration Appeals (“BIA”) upheld the IJ's decision. The Contrerases argued that prior counsel was ineffective for: (1) filing a labor certification application with the DOL despite knowing that Margarito's employer could not pay the offered wage; (2) failing to file a timely motion to reconsider the denied visa petition with the DHS; (3) misleading the IJ by claiming that an appeal of the denied visa petition had been filed with the DHS; and (4) failing to request a continuance (rather than voluntary departure) so that Margarito's employer could have filed a new labor certification application and visa petition. The BIA concluded that the Contrerases failed to “show that the hearing before the [IJ] was unfair or that, due to any alleged ineffective assistance of counsel during the course of the removal proceedings, they were prevented from reasonably presenting their case.” (Emphasis added.) The BIA further explained that

[the Contrerases' primary] arguments of ineffective assistance of counsel center on [Margarito's] pursuit of his application for adjustment of status by way of an employment-based visa petition, difficulties over which we have no jurisdiction. The alleged ineffective assistance involved counsel who represented [the Contrerases] before the DHS, counsel who had been retained several years before these administrative proceeding were initiated....

(Emphasis in original.) Finally, the BIA concluded that the IJ's factual findings were not clearly erroneous and that she had not erred in concluding that the Contrerases “did not receive ineffective assistance from [their] former attorney during the course of the removal proceedings.”

The Contrerases then filed a timely petition for review. The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction under 8 U.S.C. § 1252.

II. Standard of Review

When, as here, the BIA affirms an IJ's decision and adds analysis of its own, we review both the IJ's and the BIA's decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.2003) ( en banc ); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). We review the denial of a motion to reopen for abuse of discretion and may reverse only if the denial is arbitrary, irrational, or contrary to law. Shardar v. Att'y Gen., 503 F.3d 308, 311–12 (3d Cir.2007). We review de novo questions of law, such as whether petitioners' due process rights to the effective assistance of counsel have been violated. Fadiga v. Att'y Gen., 488 F.3d 142, 153–54 (3d Cir.2007).

III. Discussion

The Contrerases argue that their prior counsel rendered ineffective assistance both before...