Hernandez v. Reno, 99-2046

• Decision Date: 08 November 2000
• Docket Number: N,No. 99-2046,99-2046
• Citation: 238 F.3d 50
• Parties: (1st Cir. 2001) Carlos Antonio Hernandez, Petitioner, Appellant, v. Janet RENO, Attorney General of the United States, et al., Respondents, Appellees. o. 99-2102 Heard
• Court: U.S. Court of Appeals — First Circuit

Page 50

238 F.3d 50 (1st Cir. 2001)

Carlos Antonio Hernandez, Petitioner, Appellant, v. Janet RENO, Attorney General of the United States, et al., Respondents, Appellees.

No. 99-2046, No. 99-2102

United States Court of Appeals For the First Circuit

Heard November 8, 2000

Decided January 26, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. [Hon. Richard G. Stearns, U.S. District Judge] [Copyrighted Material Omitted]

Randy Olen for petitioner.

Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Department or Justice, with whom David W. Ogden, Assistant Attorney General, Civil Division, and Emily Anne Radford, Assistant Director, were on brief for respondents.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

BOUDIN, Circuit Judge.

Carlos Hernandez is a native and citizen of the Dominican Republic who entered the United States as an immigrant in 1982. In 1989, Hernandez was convicted in state court of distributing cocaine. As a result, the INS commenced deportation proceedings against Hernandez, charging him with being removable under section 241 of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251 (1988), because his conviction qualified as an aggravated felony, id. § 1251(a)(4)(B), and a narcotics violation, id. § 1251(a)(11). (U.S. Code references are to the 1994 edition unless otherwise indicated.)

In November 1989, Hernandez conceded deportability and applied for a waiver of deportation under INA section 212(c), 8 U.S.C. § 1182(c). At his hearing which commenced in August 1990, Hernandez argued that his family ties to the United States, job history, and rehabilitation made him eligible for discretionary relief from deportation. The immigration judge disagreed, denying Hernandez' request for waiver because the "adverse factors in [his] case so greatly outweigh[ed] the social and human considerations presented." Hernandez was ordered deported on September 4, 1992.¹

Five days later, Hernandez' counsel filed a timely notice of appeal with the Board of Immigration Appeals (the "Board"). The notice stated that a brief on the issues would be filed separately, but Hernandez' counsel failed to submit one. As a result on October 28, 1993, the Board summarily dismissed the appeal, stating that Hernandez had failed to "meaningfully identify the particular basis" for his claim. 8 C.F.R. § 3.1(d)(1-a)(i)(A) (1993). Although under then-existing law Hernandez had the option of appealing the Board's decision to this court, no appeal was taken. See INA § 106(a), 8 U.S.C. § 1105a(a), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 242, 110 Stat. 3009-546, -612 (1996) (codified at 8 U.S.C. § 1252 (Supp. II 1996)).

Why Hernandez did not pursue his remedies is unclear. Hernandez had arguments to make to the Board but none, on our preliminary review, had great promise of success. Hernandez' then counsel has since said that he and Hernandez agreed that no court appeal from the Board's decision should be taken because it would be hopeless and that it was more useful for Hernandez to defer any clear-cut affirmance and in the meantime accumulate "equities." But it is doubtful that Hernandez would endorse this description of what happened, nor is it certain what Hernandez was told at the time.

Nevertheless, the strategy--if there was one--was initially successful. For reasons not explained to us, no action was taken against Hernandez for almost four years. Then, in May 1997, the INS issued a so-called "bag and baggage" letter to Hernandez, which directed him to appear for deportation the following month. On the day of his scheduled deportation, Hernandez hired a new attorney who immediately filed a writ of habeas corpus in the district court, 28 U.S.C. § 2241, and a motion to reopen his case with the Board, 8 C.F.R. §§ 3.2(a) & (c) (2000); both pleadings claimed that Hernandez had been denied due process in the deportation proceedings because of prior counsel's ineffectiveness.

Although unsure of its jurisdiction, the district court stayed Hernandez' deportation based on the "facial seriousness" of his due process claim. Hernandez v. Reno, 63 F. Supp. 2d 99, 100 (D. Mass. 1999). At Hernandez' request, the district court also stayed his habeas proceeding in light of then-pending litigation in which we proposed to consider, inter alia, whether newly-passed legislation barred section 212(c) discretionary relief for deportable criminals who had sought a waiver prior to the new restrictions. Thereafter, in Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999), we held that the new restrictions did not apply to such persons.

The district court then proceeded with Hernandez' petition but now found relief barred by an intervening decision by the Supreme Court, Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-87 (1999), construing section 242(g) of IIRIRA, 8 U.S.C. § 1252(g) (Supp. II 1996). Hernandez, 63 F. Supp. 2d at 103. By its terms, that section precludes jurisdiction by any court, apart from direct court of appeals review as authorized in that section, over claims:

by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Read literally, this language could easily be taken to bar district court habeas jurisdiction insofar as the "claim" related to any one of the three described types of "decision or action." The district court viewed the relief sought by Hernandez --effectively requiring the Board to reopen his section 212(c) waiver case--as interfering with the Attorney General's decision to "adjudicate" cases. Hernandez, 63 F. Supp. 2d at 103. The court therefore dismissed Hernandez' petition for lack of subject matter jurisdiction but stayed its order to permit an appeal, finding the issue "not without doubt." Id.

Hernandez now appeals, claiming that the district court's reading of section 242(g) and American-Arab is inconsistent with our later decision in Wallace v. Reno, 194 F.3d 279, 285 (1st Cir. 1999). The government responds that the habeas petition was correctly dismissed for lack of jurisdiction for two other reasons: because former section 106(a) of the INA, 8 U.S.C. § 1105a(a), made direct review the exclusive avenue to review deportation orders, and in the alternative, because Hernandez has failed to exhaust his administrative remedies, id. § 1105a(c). The government also says that Hernandez has failed to show either ineffective assistance of counsel or that the immigration judge erred in denying discretionary relief to Hernandez.

We are not persuaded by either the district court's or the government's jurisdictional objections. The district court's reading of section 242(g) is not without force, but it was rejected in Goncalves--based on an unwillingness to find an implied repeal of habeas corpus. Goncalves, 144 F.3d at 119-23. Goncalves was reaffirmed in Wallace--notwithstanding American-Arab. Wallace, 194 F.3d at 284-85. Indeed, while American-Arab was not concerned with habeas, its surprisingly narrow reading of section 242(g) indirectly reinforces Wallace and Goncalves. The government itself agrees that American-Arab's reading of section 242(g) "does not divest the district court of jurisdiction."

The government relies instead on former section 106(a) of the INA. That section, now repealed but still pertinent to Hernandez' claim, see IIRIRA §§ 309(a) & (c)(1), 8 U.S.C. § 1101 note (Supp. II 1996), made court of appeals review the "sole and exclusive procedure" to review final orders of deportation. INA § 106(a), 8 U.S.C. § 1105a(a). But in the pertinent time frame, section 106 itself explicitly endorsed habeas corpus as a remedy, id. § 1105a(a)(10), and even if this were not so, the logic of Goncalves' objection to implied repeal of habeas applies with equal force where an asserted constitutional default by counsel forfeits direct review.

In the alternative, the government argues that Hernandez has failed to exhaust his administrative remedies. Under former section 106(a)(c), review of an order of deportation was barred if, inter alia, "the alien has not exhausted the administrative remedies available to him as of right . . . ." 8 U.S.C. § 1105a(c). The government appears to rely both on Hernandez' past failure to utilize available remedies and on his present pending motion to reopen. It is useful to treat past and present remedies separately.

Starting with the past, at one time Hernandez did have at least two remedies as of right, namely, briefing a timely appeal to the Board and moving to reopen by September 30, 1996, 8 C.F.R. § 3.2(c)(2) (2000). Sometimes courts do talk of "failure to exhaust" past remedies that are no longer available, meaning either that the party did not seek the agency remedy at all or did not make a particular argument. E.g., Roman-Martinez v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996). These are essentially arguments that a claim or contention has been waived or forfeited--which is quite different than saying that there is an existing agency remedy that should be invoked before turning to the courts.

However labeled, the government's objection based on now-forgone remedies essentially overlaps, in this case, with the "merits." Hernandez' central claim in the district court was that counsel's failure seriously to pursue an appeal to the Board, and his failure entirely to appeal to this court, created a constitutional defect. If this were so--and we will return to the merits shortly--it would be very odd to say that counsel's unconstitutional conduct created a waiver, forfeit, or failure to exhaust that prevented his client from ever litigating that issue. The same is true of the failure to...