Castaneda-Suarez v. I.N.S.

• Citation: 993 F.2d 142
• Decision Date: 11 May 1993
• Docket Number: CASTANEDA-SUARE,P,No. 92-2691,92-2691
• Parties: Douglasetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 142

993 F.2d 142

Douglas CASTANEDA-SUAREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-2691.

United States Court of Appeals Seventh Circuit.

Argued Feb. 19, 1993.

Decided May 11, 1993.

Kurt Yahn (argued), Gershon Sternberg, Sternberg & Associates, Chicago, IL, for petitioner.

Fred Foreman, U.S. Atty., Crim. Div., Chicago, IL, Richard M. Evans, William J. Howard, David J. Kline, Anthony W. Norwood (argued), Dept. of Justice, Office of Immigration Litigation, Washington, DC, A.D. Moyer, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for respondent.

Before BAUER, Chief Judge, CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Douglas Castaneda-Suarez (Castaneda) brings this appeal from an order of deportation affirmed by the Board of Immigration Appeals (Board). An immigration judge (IJ) ordered Castaneda deported after he had conceded his deportability for a controlled substance conviction pursuant to section 241(a)(11) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1251(a)(11) (1988), ¹ and had failed to file an application for discretionary relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988). We affirm the decision of the Board, but stay execution of its deportation order.

I.

Castaneda is a twenty-eight year old male citizen of Columbia. He entered the United States in 1966 as a lawful permanent resident and has been a resident ever since. On February 5, 1987, the Immigration and Naturalization Service (INS) issued an Order to Show Cause and Notice of Hearing charging Castaneda with being deportable under section 241(a)(11) of the Act, as an alien convicted of a controlled substance violation. Castaneda admitted the allegations in the charge and conceded his deportability. He thereafter requested leave to file an application for discretionary relief pursuant to section 212(c), which grants the Attorney General discretion to admit or suspend deportation of a permanent resident who has resided in the United States for at least seven years. ² The IJ granted the request, ordered the application to be filed by August 3, 1987, and scheduled a hearing to be held on October 1 of the same year.

Castaneda's 212(c) application was never filed. On August 5--two days after the 212(c) application was due--Castaneda's attorney filed a Form I-601, an application for waiver of excludability under section 212(g), (h) or (i). ³ At the scheduled hearing on October 1, the IJ denied Castaneda's request for a continuance to file the proper application. He denied relief under 212(h) with respect to the application for waiver of excludability mistakenly filed in lieu of an application for discretionary relief under 212(c), and held that 212(c) relief had been abandoned. Accordingly, the IJ ordered Castaneda deported to Columbia based on the charge admitted in the order to show cause.

Castaneda filed a Notice of Appeal claiming that the IJ abused his discretion in denying the request for a continuance to file an application for 212(c) relief. The IJ forwarded the appeal to the Board without a transcript, and Castaneda was given until September 12, 1988, to submit a brief in support of his appeal. A brief was never filed. On September 2, however, Castaneda's attorney filed with the IJ a motion to reopen the proceedings, attaching a 212(c) application and supporting documentation. Since the case was already in the jurisdiction of the Board, the IJ did not review the motion. The Board dismissed the appeal for the reasons stated in the IJ's decision. In the present petition for review of the Board's decision, Castaneda contends that he was denied due process of law because of ineffective assistance of counsel and because the Board abused its discretion in affirming the IJ's refusal to grant a continuance without a meaningful review.

II.

A. Ineffective Assistance of Counsel

Castaneda argues that he received ineffective assistance of counsel because his attorney did not file a 212(c) application, did not submit a brief in support of his appeal to the Board and did not pursue a motion to reopen with the Board. Deportation hearings are deemed civil proceedings and thus aliens have no constitutional right to counsel under the Sixth Amendment. Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.1986); see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984). Nevertheless, courts have consistently held that counsel at a deportation hearing may be "so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Magallanes-Damian, 783 F.2d at 933. ⁴

Castaneda, however, did not raise this claim before the Board in his appeal of the IJ's deportation order. Section 1105a(c) of the Act requires an alien to exhaust his administrative remedies before seeking review of a deportation order. 8 U.S.C. § 1105a(c); Drobny v. INS, 947 F.2d 241, 245 (7th Cir.1991); Vargas v. INS, 831 F.2d 906, 907 (9th Cir.1987). Although due process claims are generally exempt from the exhaustion requirement because the Board does not have authority to adjudicate constitutional issues, the requirement is applicable and the Board does have jurisdiction when the petitioner's claim involves " 'procedural errors correctable by the administrative tribunal.' " Vargas, 831 F.2d at 908 (quoting Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985)). There is no question that the Board has authority to reopen the proceeding to address the ineffectiveness claim and to consider the petitioner's equities under 212(c). See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985) (denying review of ineffectiveness claim not raised before Board until petitioner files motion to reopen and it is denied). In fact, the petitioner currently has pending a motion to reopen his deportation proceedings to file a 212(c) application based upon his claim of ineffective assistance. And even if the failure to raise a claim administratively did not preclude our jurisdiction, see Rhoa-Zamora v. INS, 971 F.2d 26, 31 (7th Cir.1992), there are prudential considerations which would restrain us from addressing this issue in the first instance. Allowing the Board to address the ineffectiveness claim "will avoid any premature interference with the agency's processes and, in addition to affording the parties and courts the benefit of the agency's expertise, it will compile a record which is adequate for judicial review." Roque-Carranza, 778 F.2d at 1374. In addition, permitting the Board to address initially the ineffectiveness claim presented in a motion to reopen would "prevent deliberate bypass of the administrative scheme." Castillo-Villagra v. INS, 972 F.2d 1017, 1024 (9th Cir.1992). INS regulations provide a procedure for raising issues not previously addressed by the Board, 8 C.F.R. § 3.8(a) (1992), and the Board has discretion in deciding whether a proceeding should be reopened, INS v. Doherty, --- U.S. ----, ----, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992). During oral argument, current counsel for Castaneda conceded that he raised the issue in this appeal because he wanted us to address the ineffectiveness claim on de novo review rather than under the deferential standard applied when reviewing the Board's reopening decision. We will not permit a petitioner to flout INS procedures in an effort to avoid the exercise of the Board's discretion.

Accordingly, we decline to address the ineffectiveness claim at this time. Of course, if the motion to reopen currently pending before the Board is ultimately denied, the petitioner may challenge that decision in this court. This brings us to another issue--frequently raised in deportation proceedings. Counsel for Castaneda stated during oral argument that one of his concerns leading him to raise the ineffective assistance claim before us was his fear that Castaneda would be deported before the Board has ruled on the motion to reopen. Counsel correctly recognizes that a motion to reopen does not automatically stay a deportation order. 8 C.F.R. § 3.8(a); Rhoa-Zamora, 971 F.2d at 33 n. 6. We nonetheless have emphasized that the execution of a deportation order before the final resolution of any (non-frivolous) challenges to the order would raise significant equitable, if not constitutional, concerns. Sivaainkaran v. INS, 972 F.2d 161, 166 (7th Cir.1992); Rhoa-Zamora, 971 F.2d at 35 nn. 8, 11; Kaczmarczyk v. INS, 933 F.2d 588, 597 n. 6 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991); see also Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992). In those cases, we were content to presume that the Board would exercise its discretion and stay the execution of its order when faced with the good faith motion to reopen. Id. During oral argument, however, the INS was less than reassuring that Castaneda would not be deported before the Board could rule on his motion. ⁵ Thus, the INS puts us in a difficult position. It argues that we should not address Castaneda's claim until he has exhausted his remedies before the Board, yet it offers no assurances that the petitioner will still be present in this country when the Board ultimately has had a chance to review his claim. To escape this dilemma, we grant petitioner's request for a stay of the deportation order until the Board has addressed his pending motion to reopen and this court has accordingly agreed to lift it. See Roque-Carranza, 778 F.2d at 1374 (granting stay until motion to reopen is addressed by Board).

B. Board's Affirmance of IJ's Refusal to Grant Continuance

Because we find that the claim of ineffective assistance is not properly before us, the only issue in the petition for review is whether the Board abused its discretion in affirming the IJ's refusal to grant a continuance to file a 212(c) application. The granting of a continuance is within the sound discretion of the IJ and is reviewed...