Gutierrez-Morales v. Homan, No. 04-51143.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWiener
Citation461 F.3d 605
Docket NumberNo. 04-51143.
Decision Date21 August 2006
PartiesRUPERTO GUTIERREZ-MORALES, Petitioner-Appellant, v. Tom HOMAN, etc., et al., Respondents-Appellees.
461 F.3d 605
RUPERTO GUTIERREZ-MORALES, Petitioner-Appellant,
v.
Tom HOMAN, etc., et al., Respondents-Appellees.
No. 04-51143.
United States Court of Appeals, Fifth Circuit.
August 21, 2006.

Page 606

Thomas Allan Clarke (argued), San Antonio, TX, for Petitioner-Appellant.

John Francis Paniszczyn (argued), San Antonio, TX, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:


In response to the well-taken motion of Respondents-Appellees to amend our previous opinion,1 we hereby withdraw that opinion and substitute the following in its place:

Ruperto Gutierrez-Morales ("Gutierrez") petitions us for review of the Board of Immigration Appeals' ("BIA") decision declining to reopen his removal proceedings. At issue is (1) whether this court has jurisdiction to entertain Gutierrez's appeal, and (2) if so, whether Gutierrez is entitled to relief from his order of deportation on the basis of ineffective assistance of counsel.

I. FACTS & PROCEEDINGS

A. Gutierrez's Removal Order

Gutierrez, a native and citizen of Mexico, has lived in the United States since his admission as a lawful permanent resident in 1997. Later that year, Gutierrez was convicted of aiding and abetting the entry of illegal aliens into the United States in violation of 8 U.S.C. § 1325. Although Gutierrez's offense made him removable under the Immigration and Nationality Act ("INA"), removal proceedings were not initiated against him until 2001, when Gutierrez briefly traveled to Mexico from the United States. On his return, Gutierrez was arrested and placed in removal proceedings.

Before the Immigration Judge ("IJ"), Gutierrez did not challenge his removability. Instead, he sought to apply for a discretionary waiver of removal under § 240A of the INA,2 which authorizes the Attorney General to cancel a permanent resident alien's removal when, inter alia, the alien's deportation would cause family hardship.3 The IJ ordered Gutierrez to file his application for § 240A relief by June 24, 2002. Gutierrez failed to do so and, as a result, the IJ held that Gutierrez had abandoned his application and ordered him removed from the United States.

The next day, Gutierrez's lawyer filed a motion with the IJ to reopen Gutierrez's removal proceedings. In support of this motion, Gutierrez argued that his lawyer's health problems prevented counsel from filing the § 240A relief application on time. Unconvinced, the IJ denied the motion. The IJ reasoned in part that, to the extent that Gutierrez was alleging ineffective assistance of counsel, he had not satisfied the BIA's procedural requirements for bringing an ineffective assistance of counsel claim.4 In July 2003, the BIA affirmed the

Page 607

IJ's denial of Gutierrez's motion to reopen and dismissed Gutierrez's appeal.

B. Gutierrez's First Set of Challenges to His Removal Order

1. Petition for Review

In August 2003, Gutierrez made his first trip to this court, petitioning us to review the BIA's July 2003 decision affirming the IJ's denial of his motion to reopen.5 We affirmed the BIA's decision in an unpublished opinion. Specifically, we determined that the IJ properly denied Gutierrez's motion to reopen "because [Gutierrez] was informed of his right to apply for cancellation of removal, and he was provided an opportunity to do so. Thus, the [IJ] did not violate [Gutierrez's] due process rights."6

2. Habeas Corpus

Hedging his bets, Gutierrez filed a concurrent habeas petition in the Western District of Texas challenging his removal order. The district court denied Gutierrez's habeas petition, ruling, inter alia, that (1) because § 240A relief is entirely discretionary, no interest in that relief is protected by the Due Process Clause; and, alternatively, (2) because Gutierrez had yet to comply with the BIA's Lozada requirements, he could not present his ineffective assistance of counsel claim. Gutierrez did not appeal the district court's denial of his first habeas petition to this court.

C. Gutierrez's Second Set of Parallel Challenges to His Removal Order

Undeterred by his failure to obtain relief from removal, Gutierrez initiated a new round of challenges. After firing his lawyer and employing new counsel, Gutierrez returned to the BIA on May 11, 2004, with a new motion to reopen. Gutierrez's new motion urged the BIA to exercise its authority to reopen his removal proceedings sua sponte.7 Gutierrez contended that his initial lawyer's assistance had been constitutionally ineffective because he missed the deadline for filing Gutierrez's application for waiver of removal. Notably, the record reflects that by the time Gutierrez filed this new motion to reopen, he had complied with Lozada's procedural requirements.

On September 1, 2004, the BIA denied Gutierrez's motion to reopen. Specifically, the BIA held that Gutierrez's case did not present the type of exceptional circumstances that warrant the sua sponte reopening of removal proceedings.

To challenge this BIA decision, Gutierrez took a belt-and-suspenders approach, filing both a habeas action in the Western District of Texas and a petition for review

Page 608

in this court. We dismissed Gutierrez's petition for review because he filed it on October 4, 2004, more than 30 days after the BIA's order, thus making his petition untimely and depriving us of jurisdiction.8

Gutierrez filed his habeas petition on September 23, 2004. In it, he challenged the BIA's decision on grounds of ineffective assistance of counsel. The district court dismissed the petition for lack of jurisdiction because, at that time, we had not yet ruled on Gutierrez's above-mentioned petition for review challenging the same BIA decision. Thus, the district court concluded that Gutierrez had not exhausted his administrative remedies, depriving that court of jurisdiction. It is to appeal this decision of the district court — its dismissal of his September 2004 habeas petition on jurisdictional grounds — for which Gutierrez makes his third trip to this court.

II. ANALYSIS

A. Petition for Review

While Gutierrez's appeal was pending, Congress enacted the REAL ID Act on May 11, 2005. The Act retroactively "divested federal courts of jurisdiction over § 2241 [habeas] petitions attacking removal orders."9 Section 106 instructs district courts to transfer pending habeas challenges to the appropriate court of...

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25 practice notes
  • Matter of Compean, Interim Decision No. 3632.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • January 7, 2009
    ...237 F.3d 696, 700 (6th Cir. 2001); Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999); see also Gutierrez-Morales v. Homan, 461 F.3d 605, 609-10 (5th Cir. 2006); Guerra-Soto v. Ashcroft, 397 F.3d 637, 640-41 (8th Cir. 2005); United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2......
  • Singh v. Gonzales, No. 05-16005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2007
    ...requirements of Lozada. Under these circumstances, the application of res judicata is not appropriate.8 Cf. Gutierrez-Morales v. Homan, 461 F.3d 605, 608 (5th Cir.2006) ("Although this is [petitioner's] third trip through the [Fifth Circuit], we find that he could not have presented his ine......
  • Gene's Mach., Inc. v. Dep't of Homeland Sec., CIVIL ACTION NO. V-11-4
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 28, 2012
    ...assistance of counsel in pursuit of that relief." Perez-Macedo v. Holder, 405 Fed. App'x 828, 829 (quoting Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006)).Page 22 Gene's Machine has conceded that it has no Sixth Amendment right to counsel with respect to any of its I-140 peti......
  • U.S. v. Villanueva–diaz, No. 10–50176.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 1, 2011
    ...that, as a result, the alien suffered substantial prejudice.’ ” (citing Paul, 521 F.2d at 198)), is “dicta.” Gutierrez–Morales v. Homan, 461 F.3d 605, 609 (5th Cir.2006). Turning to the actual process provided for Villanueva–Diaz's proceeding, we find that, by regulation, notice of the BIA ......
  • Request a trial to view additional results
25 cases
  • Matter of Compean, Interim Decision No. 3632.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • January 7, 2009
    ...237 F.3d 696, 700 (6th Cir. 2001); Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999); see also Gutierrez-Morales v. Homan, 461 F.3d 605, 609-10 (5th Cir. 2006); Guerra-Soto v. Ashcroft, 397 F.3d 637, 640-41 (8th Cir. 2005); United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2......
  • Singh v. Gonzales, No. 05-16005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2007
    ...requirements of Lozada. Under these circumstances, the application of res judicata is not appropriate.8 Cf. Gutierrez-Morales v. Homan, 461 F.3d 605, 608 (5th Cir.2006) ("Although this is [petitioner's] third trip through the [Fifth Circuit], we find that he could not have presented his ine......
  • Gene's Mach., Inc. v. Dep't of Homeland Sec., CIVIL ACTION NO. V-11-4
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 28, 2012
    ...assistance of counsel in pursuit of that relief." Perez-Macedo v. Holder, 405 Fed. App'x 828, 829 (quoting Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006)).Page 22 Gene's Machine has conceded that it has no Sixth Amendment right to counsel with respect to any of its I-140 peti......
  • U.S. v. Villanueva–diaz, No. 10–50176.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 1, 2011
    ...that, as a result, the alien suffered substantial prejudice.’ ” (citing Paul, 521 F.2d at 198)), is “dicta.” Gutierrez–Morales v. Homan, 461 F.3d 605, 609 (5th Cir.2006). Turning to the actual process provided for Villanueva–Diaz's proceeding, we find that, by regulation, notice of the BIA ......
  • Request a trial to view additional results

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