Liu v. Waters

• Decision Date: 10 May 1995
• Docket Number: No. 94-16262,94-16262
• Citation: 55 F.3d 421
• Parties: Zhen Tau LIU, Plaintiff-Appellant, v. Philip L. WATERS, Acting District Director, Immigration and Naturalization Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 421

55 F.3d 421

63 USLW 2705

Zhen Tau LIU, Plaintiff-Appellant, v. Philip L. WATERS, Acting District Director, Immigration and Naturalization Service, Defendant-Appellee.

No. 94-16262.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 13, 1995.

Decided May 10, 1995.

Donald Ungar, Simmons, Ungar, Helbush, Steinberg & Bright, San Francisco, CA, for plaintiff-appellant.

Glyndell E. Williams, Asst. U.S. Atty., Sacramento, CA, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: GOODWIN, CANBY and T.G. NELSON, Circuit Judges.

GOODWIN, Circuit Judge:

Zhen Tau Liu appeals the denial of his petition for writ of habeas corpus, in which he sought review of the Board of Immigration Appeals' ("BIA") order denying a waiver of excludability and ordering deportation.

I. BACKGROUND

Liu, a native and citizen of China, entered the United States in 1982, when he was 12 years old. Liu, his parents, three siblings, and both sets of grandparents are all lawful permanent residents. In December, 1989, Liu and several acquaintances visited Canada. While there, they robbed a jewelry store at gun-point. Liu was convicted for robbery, unlawful use of a firearm in the commission of the robbery and possession of stolen goods with a value exceeding $1,000.

After Liu served three years of an eight-year sentence, Canada returned Liu to the United States in January 1993. The Immigration and Naturalization Services ("INS") took Liu into custody at the border and began proceedings to exclude him and deport him back to China under 8 U.S.C. Sec. 1182(a)(2)(A)(i)(I), which bars the admission into the United States of a non-citizen who has been convicted of a crime involving moral turpitude. Liu's exclusion proceedings were conducted in Colorado.

At his hearing, Liu did not contest excludability, but applied only for a discretionary waiver of his ineligibility under the Immigration and Nationality Act Sec. 212(c), 8 U.S.C. Sec. 1182(c). The statute gives the Attorney General discretion to admit otherwise ineligible aliens who are permanent residents returning from a temporary absence to a lawful unrelinquished domicile of seven consecutive years ("Sec. 212(c)"). This discretion has been delegated to the BIA.

The Immigration Judge ("IJ") denied Liu's application for waiver, and the BIA affirmed. The INS then transferred Liu to Bakersfield, California. Liu filed a petition for habeas corpus in the Eastern District of California, which was denied. Liu now appeals, claiming that he was improperly excluded from this country and that the BIA erred in denying him a waiver of excludability.

II. REVIEW OF EXCLUSION

Liu claims he was improperly barred from entering this country. ¹ Because he did not raise the issue before the IJ or BIA, the propriety of his exclusion, in the absence of special circumstances, is not before us. See 8 U.S.C. Sec. 1105a(c) ("An order of ... exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations...."); Fisher v. INS, 37 F.3d 1371, 1376 n. 3 (9th Cir.1994); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994).

Liu, now represented by new counsel, asserts that ineffective assistance of counsel caused his failure to challenge excludability at the administrative level. This assertion, however, presents a subsidiary question: whether Liu not only waived the question of excludability, but also failed, by not raising the issue before the BIA, to exhaust his claim that his counsel was ineffective before the IJ.

A petitioner must make a motion for the BIA to reopen before we will hold that he has exhausted his claims. ² In Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir.1985), where petitioner sought to present new evidence to this court, citing counsel's incompetence as the reason the evidence was not available earlier, we said he must first move to reopen his case before the BIA. The exhaustion requirement avoids "premature interference with the agency's processes" and helps to compile a full judicial record. Roque-Carranza, 778 F.2d at 1374. Similarly, in Arreaza-Cruz v. INS 39 F.3d 909, 912 (9th Cir.1994), we refused to hear petitioner's claims of ineffective assistance of counsel because he had not filed a motion to reopen, despite having had ample opportunity to do so. We recently required exhaustion again on the authority of Roque-Carranza, in Rashtabadi, 23 F.3d at 1567.

III. OUR FORGETFUL AUTHORS

Yet in accepting for review some other so-called due process claims in immigration cases we have also broadly stated that we did so because the BIA lacks jurisdiction to adjudicate constitutional questions. See, e.g., Gonzalez-Julio v. INS, 34 F.3d 820, 822 (9th Cir.1994); Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985). A narrower and more accurate statement would be that the BIA lacks jurisdiction to decide questions of the constitutionality of governing statutes or regulations. See, Rashtabadi, 23 F.3d supra at 1567. The use of broader language has led to uncertainty in our precedent about which claims not brought before the BIA we will nonetheless hear, with particular reference to ineffective assistance claims.

Ten years ago, in reviewing claims against the Federal Aviation Administration, we held that a petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violated due process. Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir.1985). This warning has been specifically applied to immigration cases. See, e.g., Rashtabadi, supra.

Frequent recitals of a mantra that the BIA has no jurisdiction to decide constitutional questions has led to a formulation as follows: The petition recites that the alien was improperly represented by counsel. It then recites that ineffective assistance equals a denial of due process of law, and therefore presents a "constitutional question" that we must decide without requiring administrative exhaustion, because, of course, the BIA could not decide "constitutional" questions. ³ We are then asked to declare that exhaustion of the administrative process has been satisfied. A good refutation of this faux logic is found in Rashtabadi, 23 F.3d at 1567.

In the factual and procedural context of some of these cases, the broad language may have been correct, whether or not it was necessary to the decision. However, taken out of context, such language, when found in a word-search, creates an option for a panel to grant review without exhaustion in one case, but if a differently posed word search is employed, another panel can deny review because the petitioner failed to move to reopen, and thus failed to exhaust. The result is the present wilderness of inconsistent cases in this circuit in which we have perhaps overly relied on electronic retrieval of language from recent cases, more or less innocent of the factual and procedural context in which that language is nestled.

It is not the law that a petitioner who has procedural grounds for seeking to reopen his administrative proceedings because of incompetent counsel may proceed directly to this court, finessing the BIA. The BIA clearly has the authority, upon a timely motion, to reopen a case for procedural errors. See Arreaza-Cruz, 39 F.3d at 912; Rashtabadi, 23 F.3d at 1567; and Roque-Carranza, 778 F.2d at 1374. Moreover, we have been cited no authority that the BIA cannot reopen a case if a proper showing is made that a miscarriage of justice is about to result because of incompetent counsel in the proceedings before the IJ. (Of course, if the BIA chooses in its discretion not to reopen, review of that decision in this court is for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992)). It makes no difference whether the matter is couched in terms of constitutional due process when the record before the BIA contains egregious procedural errors that denied the petitioner a fair hearing. Administrative tribunals, like courts, have the power to reopen and permit the correction of procedural error. Rashtabadi, 23 F.3d at 1567.

Obviously, we have been sending mixed signals to the immigration bar. Because counsel can find and cite to us our own cases reflecting inconsistent views on the reviewability of "due process" claims that were not brought up in the administrative proceedings we need to look carefully at the factual and procedural context of each claim.

Clearly the BIA has no jurisdiction to decide questions of the constitutionality of the immigration laws. See Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.1980) (BIA had no jurisdiction to consider whether deportation violated the Eighth Amendment, nor to consider whether denial of citizen children the right to petition for their alien parents violated equal protection). It is equally clear that the BIA does have the authority to reopen cases to fix administratively correctable procedural errors, even when these errors are failures to follow due process. See Rashtabadi, 23 F.3d at 1567 (petitioner's allegations of "due process violations," i.e., IJ's failure to advise him of his rights and attorney's failure to obtain consent to admitting deportability, were "exactly the sorts of procedural errors which require exhaustion"). A procedural error may be of constitutional magnitude without depriving the BIA of the authority to correct it.

Counsel should not expect to resurrect hopelessly neglected points before this court by claiming that they involved due process and thus could not have been considered by the BIA. Care should be used in perpetuating dicta appearing to deny the BIA the ability to consider anything that has a constitutional flavor. If the motion to reopen is unsuccessful, we can review its denial for an...