Mendez-Mendez v. Mukasey

• Decision Date: 08 May 2008
• Docket Number: No. 06-70851.,06-70851.
• Citation: 525 F.3d 828
• Parties: Pablo MENDEZ-MENDEZ, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

525 F.3d 828

Pablo MENDEZ-MENDEZ, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 06-70851.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2007.

Filed May 8, 2008.

Fernando L. Cosio, Honolulu, HI, for petitioner.

Norah Ascoli Schwarz, Civil Division, U.S. Department of Justice, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-698-658.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

TASHIMA, Circuit Judge:

Pablo Mendez-Mendez ("Mendez"), a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals ("Board" or "BIA"), dismissing his appeal from an Immigration Judge's ("IJ") order of removal. The Board concluded that the IJ did not abuse her discretion in denying Mendez's motion for a continuance, and that the IJ correctly concluded that Mendez did not qualify for the exception to inadmissibility found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Accordingly, the Board dismissed Mendez's appeal.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.¹

BACKGROUND

Mendez became a lawful permanent resident of the United States on December 1, 1990. On September 8, 1995, Mendez pled guilty to one count of bribery of a public official, in violation of 18 U.S.C. § 201(b)(1)(A). The sentencing guideline range was zero to six months, and Mendez was sentenced to a three-month term of imprisonment.

In 2003, Mendez was returning to the United States from Mexico and applied for admission as a lawful permanent resident. In April 2004, Mendez was served with a Notice to Appear, charging him with inadmissibility for being an alien convicted of a crime involving moral turpitude, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), based on his bribery conviction.

A hearing was held before an IJ on May 4, 2004. Through his counsel, Fernando Cosio, Mendez contested his removal, sought termination of proceedings, and indicated his intent to seek waiver of inadmissibility pursuant to 8 U.S.C. § 1182(c) or (h), and cancellation of removal pursuant to 8 U.S.C. § 1229b. The IJ scheduled a hearing for September 29, 2004, and set a filing deadline of August 6, 2004, for any applications for relief.

Mendez subsequently hired a new attorney, Clifton Davis, and, on July 28, 2004, Davis filed a motion to substitute in as attorney of record and a request to continue the September hearing and to extend the deadlines to submit Mendez's applications for relief. Davis stated in the motion that Mendez retained him on July 28, 2004, and that Davis had been out of the country from mid-May to July 19. Davis sought a continuance in order to have time to prepare Mendez's case.

On August 3, 2004, the clerk of the immigration court sent Davis a form, stating that Davis' letter was being returned because Mendez already had counsel of record, Cosio. On August 17, 2004, Cosio filed a motion to withdraw as counsel for Mendez. Cosio stated that he met with Mendez on August 11, 2004, and Mendez asked him to withdraw his representation. Cosio attached a letter from Mendez, written in Spanish, with an English translation, in which Mendez requested that Cosio stop representing him, "effective today," August 11, 2004. Mendez further stated that his church would help him with his case. The IJ issued an order on August 17, 2004, stating that "[t]he individual hearing is rescheduled to August 27, 2004 . . . because [Mendez] missed the August 6, 2004 deadline to file the I-191 application for the 212(c) waiver, and therefore it is deemed waived. Motion to withdraw as counsel will be addressed on August 27, 2004."

On August 24, 2004, Davis again filed a motion to substitute in as attorney of record and to continue the hearing and filing dates. Davis stated that he did not receive the August 3, 2004, notice from the court denying his first motion because he had also taken "a ten day trip around the islands." Upon his return, he "learned personally from Attorney Cosio that Mr. Cosio had been acting as temporary counsel in the matter," and was told by Cosio that the merits hearing had been moved to August 27, 2004. Davis also attached a letter from Cosio, in which Cosio explained that, at the time Cosio filed his motion to withdraw, he did not know that Mendez had retained Davis.

On August 24, 2004, the IJ filed an order granting the motion for withdrawal and substitution of counsel, but she also filed an order denying the motion to continue the hearing and filing dates. The IJ held the hearing on August 27, 2004. Davis appeared on Mendez's behalf. Cosio also was present at the hearing.

Davis explained that he was hired by Mendez on July 28 and that he immediately sent in the motion to continue the hearing and filing dates. The motion was returned to him because Cosio was still the attorney of record, but Davis did not receive it until he returned from his trip around the islands. As soon as he returned, Davis contacted Cosio to learn what was happening with the case, and he contacted government counsel, who did not express any objection to a continuance. Davis also stated that he thought that Mendez would qualify for cancellation of removal because he had the seven years of continuous residence required by 8 U.S.C. § 1229b(a).

The IJ then turned to the issue of whether Mendez qualified for the so-called petty offense exception to inadmissibility found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), which exempts an alien who committed a crime involving moral turpitude if "the maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months." 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The focus of the discussion at the hearing was whether the phrase, "maximum penalty possible," referred to the maximum penalty under the sentencing guidelines, or the statutory maximum.

The IJ then allowed Cosio to speak. Cosio explained that Mendez "never signed my retainer agreement," and that he told Mendez and Mendez's son the possible types of relief for which Mendez could apply and the "urgency" of applying, but that Mendez was unable to pay the retainer fee. Cosio further stated that, when Mendez retained Davis on July 28, Mendez did not tell Davis that Cosio was the attorney of record. Cosio then explained that, when Mendez asked Cosio to withdraw his representation, Mendez told Cosio that his church would be helping him, and he did not let Cosio know that Davis had been retained.

The IJ issued an oral decision denying relief and ordering Mendez removed to Mexico. The IJ found that, although Mendez never signed a retainer agreement with Cosio, Cosio did explain to Mendez and Mendez's son "the urgency of filing the various applications" for relief. The IJ noted that Mendez's son had not filed a visa petition for Mendez, and that Mendez failed to file a Form I-191, which is an application for advance permission to return to the United States. See http://www. uscis.gov/files/form/i-191instr.pdf. Stating that it was inconvenient for the court to arrange for a Spanish interpreter,² and for the court to "give filing deadlines in writing as well as orally only to have them disregarded," and that the Form I-191 was readily available to Mendez, the court found that Mendez acted unreasonably in failing to file his applications in a timely manner. The IJ accordingly denied the motion for a continuance.

The IJ also found that Mendez's conviction for bribery was a crime involving moral turpitude and was not subject to the petty offense exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The IJ agreed with the government that the phrase, "maximum penalty possible," refers to the statutory maximum, not the guideline range. Because the statutory maximum for Mendez's bribery offense was fifteen years, the IJ held that he was ineligible for the petty offense exception. The IJ accordingly denied Mendez's motion for termination of the proceedings and ordered Mendez removed to Mexico. Mendez then filed an administrative appeal to the Board.

The BIA dismissed Mendez's appeal. It pointed out that Mendez was given more than three months in which to prepare his application for relief, that he was represented by Cosio throughout that time, and that he still failed to file any applications. The Board further noted that Cosio did not seek a continuance between the May hearing and the date he filed his motion to withdraw as counsel in August. The Board accordingly concluded that the IJ did not abuse her discretion in denying Mendez's motion for a continuance, agreeing with the IJ that Mendez's failure to file his applications for relief was unreasonable. The Board also agreed with the IJ's interpretation of the petty offense exception, i.e., that the maximum penalty possible refers to the statutory maximum found in 18 U.S.C. § 201; accordingly, the Board concluded that Mendez did not qualify for the exception. Mendez filed a timely petition for review.

STANDARDS OF REVIEW

Where, as here, "the BIA has conducted a de novo review of the record, the Ninth Circuit's review is limited to the BIA's decision, except to the extent the BIA expressly adopted the IJ's opinion." Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir.2003). We accordingly review the decision of the Board. Determinations of "purely legal questions regarding the Immigration and Nationality Act" are reviewed de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). Claims of due process violations are reviewed de novo. Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).

DISCUSSION

Mendez argues, first, that he qualifies for the petty offense exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II) because the maximum sentence he could have received under...