Chupina v. Holder
| Decision Date | 25 June 2009 |
| Docket Number | Docket No. 08-3394-ag.,Docket No. 08-0867-ag. |
| Parties | Jose Enrique Arias CHUPINA, Petitioner, v. Eric H. HOLDER Jr., United States Attorney General, Respondent.<SMALL><SUP>*</SUP></SMALL> |
| Court | U.S. Court of Appeals — Second Circuit |
Anne Pilsbury (Heather Yvonne Axford, on the brief), Central American Legal Assistance, Brooklyn, NY, for petitioner.
Gregory M. Kelch (Gregory G. Katsas, Assistant Attorney General, and James E. Grimes, Senior Litigation Counsel, on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for respondent.
Before MINER, KATZMANN, and RAGGI, Circuit Judges.
Petitioner Jose Enrique Arias-Chupina ("Chupina") petitions for review of decisions entered by the Board of Immigration Appeals (the "BIA") on January 24, 2008, and June 13, 2008.1 The BIA's January 24, 2008 decision upheld the immigration judge's denial of Chupina's asylum application as untimely filed and remanded the case to the immigration judge for further consideration of Chupina's eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3) and for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. See 8 C.F.R. § 1208.16(c) (implementing the CAT). The BIA's June 13, 2008 decision denied reconsideration of its decision regarding asylum. In his petitions, Chupina argues that the BIA's decisions upholding the denial of his asylum application were in error. Chupina's applications for withholding of removal and protection under the CAT remain pending with the immigration judge. For the reasons that follow, the petitions are dismissed because there is no final order of removal over which we may assert jurisdiction in this case.
Chupina, a native and citizen of Guatemala, was admitted to the United States on or about June 28, 2000, as a non-immigrant visitor for business with authorization to remain for a temporary period to end not later than July 27, 2000. On August 22, 2001, more than a year after his authorization to remain in the United States had expired, Chupina filed applications with the former Immigration and Naturalization Service, now the Department of Homeland Security ("DHS"), for asylum, withholding of removal, and protection under the CAT.
On December 18, 2002, Chupina was served with a Notice to Appear (the "NTA"), which charged him with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States for a time longer than permitted. In a hearing before an immigration judge on March 13, 2005, Chupina, through counsel, admitted to the factual allegations in the NTA and conceded removability, relying entirely on his applications for asylum, withholding of removal, and protection under the CAT to prevent his removal to Guatemala.
In support of his applications for CAT protection and relief from removal, Chupina testified that he fled Guatemala because he feared persecution from the G-2, Guatemala's military intelligence agency, which had recruited him as an informant and had issued a membership card to him. He also testified that he attempted to apply for asylum, withholding of removal, and protection under the CAT at an earlier date, in April 2001, but that he did not file his applications until August 2001 pursuant to the advice of a non-attorney who delayed their submission.
In a written decision entered on September 14, 2005, the immigration judge denied Chupina's applications for asylum, withholding of removal, and protection under the CAT. The immigration judge found, inter alia, that (1) Chupina's asylum application was untimely because it was filed more than one year after his arrival in the United States; (2) Chupina did not qualify for any of the exceptions to the one-year deadline for filing an asylum application; (3) even if Chupina's asylum application were timely filed, he was ineligible for asylum because he was subject to the persecutor bar for having persecuted others as a member of the G-2; and (4) moreover, the persecutor bar rendered Chupina ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3) and under the CAT.
Chupina appealed the immigration judge's decision to the BIA. On January 24, 2008, the BIA sustained in part and dismissed in part Chupina's appeal. The BIA agreed with the immigration judge that Chupina's asylum application was untimely and that no exceptions to the filing deadline applied. Specifically, the BIA rejected Chupina's claim that the advice given to him by his non-attorney representative constituted ineffective assistance of counsel and therefore that "exceptional circumstances" excused him from the untimely filing. The BIA stated that Chupina could not raise an ineffective assistance of counsel claim because he had failed to satisfy the pertinent aspects of the procedural prerequisites for bringing such a claim under Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988), which require:
(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 petitioner 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 petitioner filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.
Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir.2007) (quoting Twum v. INS, 411 F.3d 54, 59 (2d Cir.2005)) (alterations omitted)). The BIA also noted that, because Chupina failed to satisfy the applicable Lozada requirements, "[t]he record does not contain sufficient evidence to establish that the late filing of [Chupina's] asylum application was due to actions or inaction of his [non-attorney] representative rather than to failures on his own part."
With respect to Chupina's applications for withholding of removal and protection under the CAT, however, the BIA concluded that the immigration judge erred in applying the persecutor bar to Chupina. The BIA observed that Chupina was not "truly inducted into the [G2] organization," that he "never received any training or pay," and that he "tried not to fulfill [his] role [as an informant for the G-2]." Accordingly, in regard to Chupina's applications for CAT protection and withholding of removal, the BIA remanded the case to the immigration judge "to allow the parties to supplement and update the record and to allow the Immigration Judge to make a new determination as to whether [Chupina] is eligible for withholding of removal ... [and protection under the CAT]."
On February 25, 2008, Chupina petitioned for review of the BIA's decision upholding the immigration judge's denial of his asylum application. At around the same time, Chupina also filed a motion to reconsider with the BIA, arguing that it erroneously found that his claim of ineffective assistance of counsel by a non-attorney did not constitute exceptional circumstances excusing the untimely filing of his asylum application. Specifically, Chupina argued that the BIA erred by applying the Lozada requirements, which apply to claims of ineffective assistance of counsel, to his claims of ineffective assistance by a non-attorney.
In a decision dated June 13, 2008, the BIA denied Chupina's motion to reconsider, affirming its earlier ruling that Chupina failed to provide sufficient evidence to support his ineffective assistance claim. The BIA noted that requiring Chupina to comply with the applicable Lozada requirements for raising an ineffective assistance of counsel claim where his representative was a non-attorney did not impose an "undue burden" on Chupina. The BIA also noted that, aside from Chupina's failure to satisfy the Lozada requirements, he also failed to allege sufficient facts to establish that his claim of ineffective assistance of counsel constituted "exceptional circumstances" to excuse the untimely filing of his asylum application. On July 11, 2008, Chupina petitioned for review of the BIA's decision denying his motion to reconsider.
In his petitions for review, Chupina argues that the BIA erred in concluding that, because of his failure to fulfill the Lozada requirements, Chupina could not establish exceptional circumstances based on his claim of ineffective assistance such as would excuse his failure to comply with the one-year filing deadline for asylum applications. In this connection, Chupina purports to raise questions of law and constitutional claims, namely, that the BIA violated his due process rights and committed legal error when it required that the Lozada submissions be satisfied for his claim of ineffective assistance by a "non-attorney." The government moves to dismiss the petition for lack of jurisdiction. It principally argues that there does not yet exist a "final" order of removal—a necessary predicate for this Court's jurisdiction to review orders of removal—because Chupina's applications for withholding of removal and protection under the CAT remain pending before the immigration judge.2
This Court's jurisdiction to review orders of removal is limited to review of "final order[s] of removal." See 8 U.S.C. § 1252(a)(1); see also, e.g., Alibasic v. Mukasey, 547 F.3d 78, 82 (2d Cir.2008) ; Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 315 (2d Cir.2007) (en banc) (...
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