Lu v. Ashcroft

• Decision Date: 24 July 2001
• Docket Number: No. 00-3393,00-3393
• Parties: (3rd Cir. 2001) XU YONG LU, PETITIONER v. JOHN ASHCROFT, <A HREF="#fr1-*" name="fn1-*">* ATTORNEY GENERAL OF THE UNITED STATES; J. SCOTT BLACKMAN, DISTRICT DIRECTOR OF THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, PHILADELPHIA DISTRICT; AND THE DIRECTOR OF EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS, RESPONDENTS
• Court: U.S. Court of Appeals — Third Circuit

Page 127

259 F.3d 127 (3rd Cir. 2001)

XU YONG LU, PETITIONER v. JOHN ASHCROFT,^* ATTORNEY GENERAL OF THE UNITED STATES; J. SCOTT BLACKMAN, DISTRICT DIRECTOR OF THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, PHILADELPHIA DISTRICT; AND THE DIRECTOR OF EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS, RESPONDENTS

No. 00-3393

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 30, 2000

Filed July 24, 2001

APPEAL FROM THE BOARD OF IMMIGRATION APPEALS (No. A72 762 151)

[Copyrighted Material Omitted]

John B. Consevage, Esq. (Argued) Buchanan Ingersoll 213 Market Street One South Market Square, 3rd Floor Harrisburg, PA 17101 Counsel for Petitioner

Michael P. Lindemann, Esq. Linda S. Wendtland, Esq. Matthew R. Hall, Esq. Russell J.E. Verby, Esq. (Argued) United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent

Before: Scirica, Nygaard, and Barry, Circuit Judges.

OPINION OF THE COURT

Nygaard, Circuit Judge.

Petitioner Xu Yong Lu seeks to reopen immigration proceedings on account of alleged ineffective assistance of counsel. Lu filed a motion to reopen before an Immigration Judge, which was denied. The Board of Immigration Appeals affirmed, in part because Lu failed to comply with the procedural requirements laid out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). We conclude that the Lozada requirements are a reasonable exercise of the Board's discretion; furthermore, the Board did not err in holding that Lu failed to satisfy these requirements. Therefore, we will affirm the denial of Lu's motion to reopen his immigration proceedings.

I.

Xu Yong Lu is a native and citizen of the People's Republic of China ("PRC"). In the summer of 1993, he arrived at the shores of Rockaway Beach, New York, aboard the Golden Venture, a vessel carrying approximately 150 other aliens. Lu claims that he fled the PRC in order to escape persecution under the country's "one couple -- one child" policy. Because Lu has three children, he was subject to a number of fines, threatened with incarceration, and his wife was sterilized.

The Immigration and Naturalization Service of the United States detained Lu shortly after his arrival at Rockaway Beach. The INS instituted exclusion proceedings and Lu requested an attorney. At a hearing conducted on July 2, 1993, Lu's appointed counsel, Michael Usher, admitted the charges against Lu but contended that the INS should seek deportation rather than exclusion. Lu then filed two applications for political asylum or, in the alternative, withholding of deportation.

Immigration Judge Wayne R. Iskra conducted a formal hearing on the merits of Lu's claim on September 1, 1993. In an oral decision, Judge Iskra cited two advisory opinions by the State Department, which both recommended denying political asylum. He also found that Lu's testimony contained numerous contradictions and lacked credibility -- it was "essentially incomplete and he was hesitant." Finally, he noted that a claim for asylum based solely upon China's one-child policy is foreclosed by Board precedent. He therefore denied all claims and ordered Lu excluded and deported. Mr. Usher expressly reserved the right to appeal, and Judge Iskra indicated that an appeal, if desired, had to be filed on or before September 13, 1993. No appeal was filed. Lu contends that his attorney agreed to pursue an appeal; however, he concedes that he had no further contact with Mr. Usher after the hearing.

Almost one year later, Lu filed a pro se habeas corpus petition in the United States District Court for the Middle District of Pennsylvania. The court issued a stay of Lu's deportation and eventually consolidated his petition with those of other Golden Venture detainees. However, on September 5, 1995, the government moved to dismiss the petition because of Lu's failure to timely appeal his original deportation order. In response, Lu requested that the court hold the government's motion in abeyance while he filed a motion to reopen the administrative proceeding, which would allow him to file an untimely appeal to the Board of Immigration Appeals. The District Court dismissed Lu's habeas corpus petition, but nonetheless continued to stay his deportation pending the outcome of his motion to reopen. Lu filed his motion to reopen on September 25, 1996. In it, he argued that Mr. Usher's failure to appeal Judge Iskra's decision constituted ineffective assistance of counsel.

On December 31, 1996, Judge Iskra denied Lu's motion to reopen the administrative proceedings. First, he rejected Lu's contention that Mr. Usher was obligated to file an appeal because he had expressly reserved the right to do so. Judge Iskra stated that "it is not clear whether former counsel owed his client a duty to appeal the case." Even if such a claim had merit, however, Judge Iskra found that Lu had not complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Specifically, Lu did not establish the existence of an agreement with Mr. Usher to file an appeal, and he failed to adequately explain his decision not to pursue a disciplinary complaint with the bar association. As a result, Lu's claims did not establish the exceptional circumstances necessary to reopen immigration proceedings.

Lu filed a timely appeal with the BIA shortly thereafter. He claimed that Judge Iskra's decision violated his fundamental due process rights. The BIA rejected Lu's arguments "for the reasons set forth in the Immigration Judge's . . . written decision." Lu then filed a second habeas corpus petition in federal court seeking review of the BIA's decision. The District Court transferred the petition to us. Our task, therefore, is to review the denial of Lu's motion to reopen his immigration proceedings.

II.

At the time Lu filed his motion, there was no statutory provision governing the reopening of immigration proceedings.¹ See INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 724 (1992) ("There is no statutory provision for reopening of a deportation proceeding."). Instead, "the authority [to reopen derived] solely from regulations promulgated by the Attorney General. . . . [who had] `broad discretion' to grant or deny such motions." Id.; see also INS v. Jong Ha Wang, 450 U.S. 139, 143-45 & n.5, 101 S.Ct. 1027, 1030-32 & n.5 (1981).

We have traditionally disfavored motions to reopen immigration proceedings for the same reason we disfavor "petitions for rehearing and motions for a new trial on the basis of newly discovered evidence." Id. at 323; Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993). If anything, deportation proceedings are even more disfavored because "as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25; see also INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 913 (1988) ("Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.").

Thus, we review the BIA's decision to deny reopening for abuse of discretion, mindful of the "broad" deference that the Supreme Court would have us afford. See Abudu, 485 U.S. at 110, 108 S.Ct. at 915 ("[T]he reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context."); Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25 ("[T]he abuse-of-discretion standard applies to motions to reopen `regardless of the underlying basis of the alien's request [for relief].' ").

III.

Lu argues that the BIA should have reopened his case because he suffered ineffective assistance of counsel. Immigration proceedings, however, are civil, rather than criminal, in nature; therefore, the Sixth Amendment guarantee of effective counsel does not attach. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483 (1984); Scheidemann v. INS, 83 F.3d 1517, 1520 n.4 (3d Cir. 1996). Nonetheless, petitioners in deportation proceedings enjoy Fifth Amendment Due Process protections. In Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988), the First Circuit Court of Appeals held that ineffective assistance of counsel could constitute a denial of due process if "the alien was prevented from reasonably presenting his case." See also Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001) ("[W]here counsel does appear for the respondent, incompetence in some situations may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due process objection."); Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) ("[C]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."); Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1985).

The government argues, however, that aliens facing exclusion proceedings do not enjoy the same set of rights as those facing deportation. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329 (1982) ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."). Although we recognize that Plasencia is still good law, see, e.g., Zadvydas v. Underdown, 185 F.3d 279, 294 (5th Cir. 1999) ("Denial of entry is . . . not a deprivation of rights subject to procedural due process, . . . we leave it to Congress to determine the procedures to be used in adjudicating such claims."), we are reluctant to hold that aliens facing exclusion have no recourse against deficient counsel. Such...