Mantell v. U.S. Dept. of Justice, I.N.S.

• Decision Date: 20 August 1986
• Docket Number: No. 86-4097,86-4097
• Citation: 798 F.2d 124
• Parties: Carl Eric MANTELL, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 124

798 F.2d 124

Carl Eric MANTELL, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-4097

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 20, 1986.

Pete Magaro, San Antonio, Tex., for petitioner.

Edwin Meese, III, Dept. of Justice, Washington, D.C., Robert L. Bombough, Director, Office of Immigration & Lit. Civil Div., Madelyn E. Johnson, Allen W. Hausman, Asst. Dir., Jane A. Williams, Washington, D.C., for respondent.

David H. Lambert, Dist. Dir., I.N.S., New Orleans, La., Richard M. Casillas, Dist. Dir., U.S. I.N.S., San Antonio, Tex., other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before ALVIN B. RUBIN, REAVLEY and ROBERT MADDEN HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In this appeal Carl Eric Mantell challenges the issuance of final orders of deportation entered by the Board of Immigration Appeals (the BIA). We affirm.

I.

Mantell, a thirty-seven-year-old native and citizen of Great Britain, lawfully entered the United States for permanent residence in 1967 and for nineteen years has resided continuously in this country. On June 3, 1981 Mantell was convicted of possessing a usable quantity of marijuana in excess of four ounces in violation of Texas state law. Following his conviction, Mantell was served with an order to show cause charging that his narcotics violations made him deportable under 8 U.S.C. Sec. 1251(a)(11). ¹

At the hearing Mantell conceded his deportability and requested a waiver of excludability as provided for in 8 U.S.C. Sec. 1182(c). Pursuant to this statute, aliens admitted for permanent residence who have maintained a lawful unrelinquished domicile in the United States for seven consecutive years may, in the Attorney General's discretion, be permitted to continue residing in the United States notwithstanding their deportability under other sections of the United States Code. ² In support of his petition for waiver, Mantell testified that he had been employed as a barber for six years, and had paid federal income taxes for the previous five years. He stated further that he was married to a United States citizen and paid child support to four children by three previous marriages to United States citizens. Mantell supplied no proof of his paternity or current marriage and produced no receipts which would prove that he had paid child support or federal taxes.

The immigration judge, noting that Mantell conceded the factual allegations in the show cause order, found him deportable as charged. Turning to Mantell's application for relief under 8 U.S.C. Sec. 1182(c), the judge found that Mantell had not met his burden of establishing that he merited a favorable exercise of discretion. The thrust of the immigration judge's opinion is contained in the following passage [T]he immigration judge in adjudicating a Section 212(c) [8 U.S.C. Sec. 1182(c) ] waiver application "must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of Section 212(c) relief appears in the best interest of this country.... As the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities...."

The offense involved in the present case must be considered as a serious negative factor and as such may be overcome only by a showing of unusual or outstanding equities together with clear and convincing evidence of a full and complete rehabilitation.

Therefore, in determining whether Section 212(c) relief should be granted, one must consider first and foremost hardship to the respondent. In this case, [Mantell] failed to introduce any evidence indicating that his deportation to England would result in hardship to himself.

He has also failed to establish that deportation would result in hardship to members of his family. In this connection, he has also failed to establish the existence of familial ties with citizens of the United States. The only evidence of record are his own assertions concerning his marital status. He has completely failed to document his assertions by submitting not only marriage certificates but also documentary evidence of how and when such marriages terminated.

I also place special emphasis on the fact that [Mantell] considered his third relationship as a common-law marriage. There is no evidence concerning the circumstances surrounding the creation of this relationship, nor how, nor when, or under what circumstances this relationship was terminated. It is well known that common-law marriages are valid in the state of Texas. There is no evidence as to where this relationship took place, nor that such relationship is valid and recognized in the state in which it was created. Without this information, even if I were to assume that he had terminated his prior two marriages, I could not find that he has established he is legally married to a citizen of the United States. In addition, it is noted that he did not submit any evidence whatsoever concerning his alleged present spouse's citizenship. As stated before, the only evidence is his own assertion that she is a citizen of the United States. [Mantell] has also failed to submit documentary evidence to corroborate his testimony concerning the existence of four United States citizen children. Without this, I cannot find that he is the parent of the four children named in the application for a waiver of inadmissibility.

(Quoting Matter of Silva, 16 I & N Dec. 26 (BIA 1976)).

On May 21, 1984, Mantell filed a notice of appeal to the BIA stating that "[t]he Court abused its discretion in denying relief, and other reasons exist to granting relief [sic]." No brief was submitted to support the appeal. The BIA dismissed Mantell's appeal in an order dated August 7, 1985. The order reiterated that Mantell presented no corroborating documentation establishing his family ties with American citizens and that, given the seriousness of the narcotics conviction and the lengthy probation sentence, a waiver of excludability was properly denied.

On September 12, 1985, Mantell's newly retained counsel filed a "Motion to Reopen, Terminate Proceedings and Stay of Deportation" with the BIA. The bases for the motion to reopen included Mantell's pending application for naturalization and his previously unconsidered military service record. The motion also reiterated Mantell's claims of marriage to a United States citizen and of fathering four citizen children but supplied no corroborating documentation. This motion was amended on February 3, 1986, to include as additional bases for reopening the charge that the Immigration and Naturalization Service (INS) withheld Mantell's military service record from the judge in violation of INS Operating Instruction 242.1(a)(19) (O.I. 242.1(a)(19)) and that his previous counsel was ineffective during the earlier deportation proceedings.

The BIA denied the motion to reopen, concluding that petitioner did not establish ineffective assistance of counsel. The BIA further resolved that termination of the deportation proceedings to allow Mantell to proceed to a final hearing on the pending petition for naturalization was not warranted, since the applicable regulation required the petitioner not only to have established prima facie eligibility for naturalization but also that he demonstrate "exceptionally appealing or humanitarian factors." Finding that the motion to reopen lacked supporting documentation illustrating the existence of such factors, the BIA refused to reopen the case.

Mantell's timely petition for review before this court challenges the BIA's August 7, 1985, order affirming the immigration law judge's denial of discretionary relief and the BIA's refusal to grant his motion to reopen.

II.

The immigration judge's denial of discretionary relief, based on the complete absence of corroborative evidence establishing any equities in Mantell's favor, is clearly not reversible by this court. We will not review decisions turning purely on the immigration judge's assessment of the alien petitioner's credibility. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir.1977). Turning to Mantell's claim that he is entitled to a new hearing, we find it to be, likewise, without merit.

Mantell's motion to reopen rested on four grounds: (1) his counsel's ineffectiveness in failing to produce evidence of Mantell's family ties to United States citizens, (2) his counsel's ineffectiveness in failing to inform the immigration judge of Mantell's prior military service, (3) his counsel's ineffectiveness in failing both to file an application for naturalization and to move for termination of deportation during pendency of the application, and (4) the INS' violation of its operating procedures in failing to inform the judge of Mantell's military service and in failing to inform Mantell that his military service made him eligible to be naturalized. We shall discuss each in turn.

A. Ineffective Assistance of Counsel

Mantell has no right to "effective assistance of counsel" as such. The sixth amendment right to counsel, from which flows the right to "effective" counsel, is limited to criminal prosecutions and thus has no application in deportation proceedings. Paul v. INS, 521 F.2d 194, 197 (5th Cir.1975); Barthold v. INS, 517 F.2d 689 (5th Cir.1975). Several circuits have found, however, that there may be circumstances so egregious and the representation so "deficient," "inadequate," and "incompetent" as to become "no representation of counsel."...