U.S. v. Perez, 02-1517.

• Decision Date: 15 May 2003
• Docket Number: No. 02-1517.,02-1517.
• Citation: 330 F.3d 97
• Parties: UNITED STATES of America, Appellant, v. Segundo Dejesus PEREZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

330 F.3d 97

UNITED STATES of America, Appellant, v. Segundo Dejesus PEREZ, Defendant-Appellee.

No. 02-1517.

United States Court of Appeals, Second Circuit.

Argued: March 19, 2003.

Decided: May 15, 2003.

COPYRIGHT MATERIAL OMITTED

Steven M. Statsinger The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, for Appellee.

Emily Berger Assistant United States Attorney, Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, and Peter A. Norling and Catherine W.H. So, Assistant United States Attorneys, on brief), Brooklyn, New York, for Appellant.

Before: VAN GRAAFEILAND, F.I. PARKER, SOTOMAYOR, Circuit Judges.

F.I. PARKER, Circuit Judge.

The United States appeals from an order entered on July 29, 2002, in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), dismissing an indictment filed against Segundo DeJesus Perez on the basis that the underlying deportation order was unlawful. The indictment charged Perez with illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

I.

Perez is a citizen of the Dominican Republic who became a lawful permanent resident of the United States in 1986. On April 30, 1993, he was convicted of the attempted sale of a controlled substance and was sentenced to six months' imprisonment and five years' probation. On August 2, 1993, the Immigration and Naturalization Service ("INS") initiated deportation proceedings by serving Perez with an order to show cause and a notice of hearing. The order included a form advising him of his right to appeal any subsequent decision of the immigration judge ("IJ").

A deportation hearing was conducted on October 5, 1993. Perez was present; his attorney, John J. Garzon, participated by telephone. After the IJ found that Perez was deportable because of his criminal conviction, the IJ asked Garzon if he sought any relief from deportation. Garzon stated that Perez intended to seek relief under 212(c), referring to Section 212(c) of the Immigration and Naturalization Act, which at that time permitted the Attorney General to grant a discretionary waiver of deportation. The IJ directed Perez to file an application by October 19, 1993, and said that Perez could be deported if no papers were filed by that time. The IJ also scheduled a hearing on the application for November 1, 1993, and advised Garzon that a personal appearance would be necessary.

No application for discretionary relief was filed by October 19. On October 20, the IJ entered a deportation order, finding that Perez had abandoned his claims under § 212(c). Eight days later, on October 28, 1993, Garzon filed a motion to reopen Perez's deportation hearing. In the motion, he stated that he had told the clerk of the court on October 18 that he would file a motion for continuance, but that he had not done so because he received the IJ's deportation order first. An unfiled motion for continuance dated October 27, 1993, was attached to the motion to reopen Perez's deportation hearing and to stay his deportation pending any decision and any subsequent appeal to the Board of Immigration Appeals ("BIA"). An unsigned application for § 212(c) relief was also attached.

The IJ denied the motion to reopen and to stay the deportation order, finding that Perez had not shown good cause for his failure to file the § 212(c) application in a timely manner. The IJ also noted that the only § 212(c) application filed was unsigned and that the deportation order had become final upon the expiration of the time to appeal, and thus Perez was no longer a lawful permanent resident of the United States. On November 10, 1993, Garzon appealed the IJ's decision on Perez's behalf to the BIA. On the same day, Perez was deported to the Dominican Republic. The IJ's decision was subsequently affirmed by the BIA on the basis that: 1) the deportation order had become final and thus Perez was not entitled to reopen the hearing because he was no longer a lawful permanent resident, and 2) Perez had failed to show good cause for the failure to file the § 212(c) application in a timely manner. Thus, neither the IJ nor the BIA considered the merits of Perez's § 212(c) application.

On November 24, 2001, petitioner arrived at John F. Kennedy International Airport on a flight from the Dominican Republic. He showed his Dominican Republic passport and his resident alien card at an INS inspection center. He was arrested after a computer check showed that he had been deported following a criminal conviction, and that he did not have permission to reenter the United States. On December 11, 2001, he was indicted on one count of illegal reentry after having been deported following a conviction for the commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Perez now challenges that indictment on the basis that his underlying deportation order was unlawful.

II.

Under 8 U.S.C. § 1326(d), an alien may only succeed in his or her challenge of the validity of a deportation order as an element of a criminal offense if: 1) all administrative remedies have been exhausted; 2) the deportation proceeding improperly deprived him or her of the opportunity for judicial review; and 3) the entry of the deportation order was fundamentally unfair. See 8 U.S.C. § 1326(d); United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.2002).

A. Exhaustion Requirement

Although Perez did not appeal his deportation order to the BIA,¹ he has satisfied the exhaustion requirement by appealing the denial of his motion to reopen to the BIA. Regardless of whether an appeal of a denial of a motion to reopen is sufficient to constitute exhaustion of all claims, an issue we need not reach, it is sufficient for due process claims. We have explained that the BIA does not have jurisdiction to adjudicate constitutional issues such as due process claims. See United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir.2002). Nevertheless, this court generally requires such claims to be first presented to the BIA because "[i]n order to correct these errors, `the BIA can reopen the proceedings and, in appropriate circumstances, allow the petitioner to supplement the record with additional evidence.'" Id. Thus, petitioner asked the BIA to do the one thing it could do: reopen the proceedings. Therefore, petitioner has satisfied the exhaustion requirement.²

The government also argues that Perez did not exhaust his administrative remedies because he did not appeal the BIA's decision affirming the denial of the motion to reopen and to stay deportation to the Fifth Circuit Court of Appeals. This argument is clearly without merit because 8 U.S.C. § 1326(d) explicitly requires exhaustion only of administrative remedies, not judicial ones.³

B. Deprivation of the Opportunity for Judicial Review Requirement

Perez was deprived of judicial review because, as a result of his counsel's failure to timely file the § 212(c) application, neither the IJ nor the BIA ever considered the merits of Perez's § 212(c) application.

More importantly, Perez was also deprived of the opportunity for judicial review. Deprivation of the opportunity for judicial review can be established by demonstrating ineffective assistance of counsel, and the failure of counsel to file a § 212(c) application can constitute ineffective assistance of counsel. See Rabiu v. INS, 41 F.3d 879, 883 (2d Cir.1994). As deportation proceedings are civil in nature, aliens in such proceedings are not protected by the Sixth Amendment right to counsel. See Saleh v. United States Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992). Instead, for an alien to prevail on a claim of ineffective assistance of counsel, he or she "must show that his counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Id. (internal formatting omitted). To show fundamental unfairness, an alien must "allege facts sufficient to show 1) `that competent counsel would have acted otherwise,' and 2) `that he was prejudiced by his counsel's performance.'" Rabiu, 41 F.3d at 882 (quoting Esposito v. INS, 987 F.2d 108, 111 (2d Cir.1993)).

In Rabiu, we held that failure of an attorney to file a § 212(c) application on his client's behalf rose to the level of ineffective assistance of counsel because a competent attorney would have filed such a motion, there was a prima facie showing of eligibility for § 212(c) relief, and the alien "could have made a strong showing in support of his application." Rabiu, 41 F.3d at 883.

Perez has satisfied the test set forth in Rabiu and has therefore shown that a Fifth Amendment violation deprived him of the opportunity for judicial review.

First, Garzon's failure to file the section 212(c) application after stating that he would at the deportation hearing, and without later informing his client otherwise, fell below the level of performance expected of competent counsel. In Rabiu, this court stated that "[i]n our view, a competent attorney would have filed a motion pursuant to § 212(c) after his or her client requested permission to do so at the deportation hearing." Rabiu, 41 F.3d at 882. Like Rabiu, Perez requested permission, albeit through counsel.

Second, Perez has shown prejudice because he has shown that he was eligible for § 212(c) relief and that he could have made a strong showing in support of his application for such relief. In determining whether to grant discretionary relief under § 212(c), an immigration law judge "`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 interests of this country.'" See Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995). Adverse factors include: 1) the...