Taniguchi v. Schultz
| Decision Date | 23 August 2002 |
| Docket Number | No. 00-16928.,No. 00-71053.,00-16928.,00-71053. |
| Citation | 303 F.3d 950 |
| Parties | Virginia Dumlao TANIGUCHI, Petitioner-Appellant, v. John Paul SCHULTZ; Kathleen Sawyer; Doris Meissner; John Ashcroft, Attorney General, Respondents-Appellees. Virginia Agustin TANIGUCHI, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vincent Chan, Los Angeles, CA, for the petitioner-appellant.
Shelley R. Goad, Office of Immigration Litigation, United States Department of Justice, for the respondents-appellees.
Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-99-04648-MJJ.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A34-409-308.
Before RONEY,* HUG, JR. and THOMAS, Circuit Judges.
Virginia Agustin Taniguchi appeals both the Board of Immigration Appeals' denial of her motion to reopen as well as the District Court's denial of Taniguchi's habeas corpus petition. The Immigration Judge ordered Taniguchi removed, and she did not appeal that decision, but subsequently filed a motion to reopen on the grounds that she is a United States citizen. However, because Taniguchi filed her motion more than 90 days following the date of the final administrative decision, the Immigration Judge dismissed her motion as untimely. The BIA affirmed the Immigration Judge's ruling. She then filed a petition for review, which we dismiss for lack of jurisdiction.
Taniguchi also filed a petition for writ of habeas corpus alleging (1) that she is a United States citizen, (2) that the waiver provision of INA § 212(h), 8 U.S.C. § 1182(h) violates equal protection, and (3) that her former attorney was ineffective. The District Court denied Taniguchi's petition. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Taniguchi, a native and citizen of the Philippines, was admitted to the United States as an immigrant in July 1973. Since her admission into this country, Taniguchi has been convicted of numerous crimes in Hawaii state court and in United States District Court.
Specifically, in October 1987, Taniguchi pled no contest to the offense of theft in the first degree (three counts) in Hawaii state court and was sentenced to five years imprisonment with each count to run concurrently. In April 1988, she pled guilty to the offense of theft in the first degree (two counts) and attempted theft in the first degree in Hawaii state court, and was sentenced to an extended term of ten years with each of the counts to be concurrent to each other and to any other term she was serving. In January 1996, she was convicted in the United States District Court, District of Hawaii of the offenses of bank fraud in violation of 18 U.S.C. § 1344 (three counts), criminal forfeiture in violation of 18 U.S.C. § 982, submitting a false income tax return in violation of 26 U.S.C. § 7206(1), and use or attempted use of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2). She was also convicted of impersonating a citizen of the United States in violation of 18 U.S.C. § 911.
On the basis of these convictions, the Immigration and Naturalization Service ("INS") charged, in a Notice to Appear dated September 14, 1998, that Taniguchi was removable under three separate grounds: (1) Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), in that, at any time after admission, she had been convicted of an aggravated felony; (2) INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), in that, at any time after admission, she had been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, and (3) INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D), in that she was an alien who had falsely represented herself to be a citizen of the United States for any purpose or benefit under the INA, or a federal or state law.
The Immigration Judge rendered his oral decision on April 14, 1999 and found Taniguchi removable as charged. The Judge also determined that she was statutorily ineligible for cancellation of removal, under INA § 240A(a), 8 U.S.C. § 1229b(a) based on her status as an aggravated felon.
Instead of filing an appeal to the Board of Immigration Appeals ("BIA"), Taniguchi filed a motion to reopen with the Immigration Judge on or about August 1, 1999. In this motion, she requested that the Immigration Judge reopen her removal proceedings because she could not reach her attorney at that time to determine if he had filed an appeal to the BIA on her behalf and because she believed she was a United States citizen. Taniguchi attached an application for a certificate of citizenship, a Form N-600, to her motion to reopen. On September 8, 1999, the Immigration Judge denied her motion to reopen as untimely because she filed the motion more than ninety days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened. See 8 C.F.R. § 3.23(b)(1) (1999). The Immigration Judge did, however, forward Taniguchi's N-600 Form to the INS for adjudication. Although unrelated to this appeal, the INS subsequently denied her application.
On September 8, 1999, Taniguchi appealed the Immigration Judge's decision denying her motion to reopen. On March 6, 2000, the BIA denied her appeal, adopting the Immigration Judge's decision that the motion to reopen was untimely pursuant to 8 C.F.R. § 3.23(b)(1).1 She filed a timely petition for review of the BIA's denial of the motion to reopen.
On October 20, 1999, Taniguchi filed a Petition for Writ of Habeas Corpus in district court. She made numerous allegations in her petition, including (1) that she is a United States citizen, (2) that INA § 212(h), 8 U.S.C. § 1182(h), impermissibly distinguishes between lawful permanent residents ("LPRs"), like Taniguchi, and non-lawful permanent resident aliens, thus denying her, as a permanent resident, equal protection, and (3) that her previous attorney was ineffective because he failed to inform her about her possible eligibility to apply for INA § 212(h) relief from removal. Taniguchi also requested a stay of removal.
United States District Judge Martin J. Jenkins denied the petition for writ of habeas corpus and the request for a stay of removal on August 17, 2000.2 Judge Jenkins held that the District Court lacked jurisdiction to make a determination of Taniguchi's claim of citizenship because, under INA § 242(b)(5), 8 U.S.C. § 1252(b)(5), she was required to pursue her citizenship claim via a petition for review in the court of appeals. Judge Jenkins also held that because Taniguchi never applied for a waiver of removal under INA § 212(h), 8 U.S.C. § 1182(h), and therefore, never received a denial of her application, she lacked standing to raise her equal protection claim. Finally, Judge Jenkins held that Taniguchi was not entitled to a grant of the writ on her ineffective assistance of counsel claim because she did not establish prejudice.
The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)). Likewise, whether the court must dismiss the petition for review goes directly to the court's subject matter jurisdiction and is therefore subject to de novo review. See Ma v. Reno, 114 F.3d 128, 130 (9th Cir. 1997); Sahni v. Am. Diversified Partners, 83 F.3d 1054, 1057 (9th Cir.1996).
This court has jurisdiction over petitions for review to "determine whether jurisdiction exists." Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000). Therefore, the question of whether one is actually an alien would normally give rise to such jurisdiction. However, Taniguchi's claim of citizenship fails because she has not exhausted her administrative remedies as required by statute.
Under INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), "[a] court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies available to the alien as of right...." Taniguchi did not raise the issue of citizenship before the IJ in the initial removal proceedings, and she did not appeal the order of removal to the BIA. The matter before us, therefore, is not the order of removal by the IJ, because of the failure to appeal to the BIA. The matter before us is the motion to reopen.
The IJ denied the motion to reopen on the grounds that it was untimely. A motion to reopen must be filed within 90 days of the final order to be timely. See 8 C.F.R. § 3.23(b)(1) (1999). The order of removal was issued on April 14, 1999 and the motion to reopen was filed on August 1, 1999, more than 90 days later. On August 9, 2000, the BIA affirmed the IJ's denial of the motion to reopen as untimely for the reasons expressed by the IJ.
In Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc), we held that 8 C.F.R. § 3.2 is subject to equitable tolling and reversed the BIA's denial of a motion to reopen. In that case, however, we concluded that the administrative appeal to the BIA had been exhausted, because the BIA had addressed whether equitable considerations should toll the limitations period set forth in 8 C.F.R. § 3.2. Id. at 1186. In Taniguchi's case, equitable tolling was not argued to the BIA nor discussed by the BIA; nor was equitable tolling argued to this court. Thus that issue was not exhausted and furthermore was waived by failure to present it to this court.
The District Court correctly dismissed Taniguchi's citizenship claim for...
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