PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 10-4235
________________
MARGARITO CONTRERAS,
a/k/a Margarito Contera Flores;
NORMA CONTRERAS,
a/k/a Norma Perez Merito,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
________________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Annie Garcy
(No. A088-194-668 & A088-194-669)
_______________
Argued November 15, 2011
Before: RENDELL and AMBRO, Circuit Judges
and JONES, II,* District Judge
(Opinion filed: January 4, 2012)
Elizabeth C. Surin, Esq.
Thomas C. Brannen, Esq. [ARGUED]
Surin & Griffin
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106-0000
Counsel for Petitioners
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Cindy S. Ferrier, Esq.
Kate Deboer Balaban, Esq.
Matt A. Crapo, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION OF THE COURT
________________
*
Honorable C. Darnell Jones, II, District Judge for the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
2
AMBRO, Circuit Judge
This immigration case requires us to decide, among
other things, whether the Fifth Amendment’s Due Process
Clause guarantees an alien effective assistance of counsel in
preparing, filing, and appealing a labor certification
application and a visa petition before the start of removal
proceedings. We hold that it does not, and thus deny the
petition for review.
I. Background
Petitioners Margarito Contreras and his wife Norma,
both natives and citizens of Mexico, entered the United States
unlawfully in 1993 and 1998, respectively. Since 2000,
Margarito has been seeking employment-based permanent
residency in the United States, i.e., a “green card.” This long,
complex process requires submitting several applications with
supporting documentation to the United States Department of
Labor (“DOL”) and the United States Customs and
Immigration Services (“USCIS”) of the Department of
Homeland Security (“DHS”). See Khan v. Att’y Gen., 448
F.3d 226, 228 n.2 (3d Cir. 2006); Matter of Rajah, 25 I. & N.
Dec. 127, 130-33 (BIA 2009).
The process involves three essential steps. First, an
alien’s employer files a Form ETA-750 labor certification
application with the DOL on the alien’s behalf. The DOL
will approve the application only if, among other things, there
are not sufficient United States workers “able, willing,
qualified . . . and available” to perform the job. 8 U.S.C.
§ 1182(a)(5)(A)(i)(I).
3
Second, if the DOL approves the labor certification
application, the employer files it along with a Form I-140 visa
petition with the USCIS. 8 U.S.C. § 1154(a)(1)(F). Among
other things, the employer must prove that it can afford to pay
the alien the proffered wage from the time it filed the labor
certification application until the time the alien obtains lawful
permanent residency. 8 C.F.R. § 204.5(g)(2). If the USCIS
approves the visa petition, then it determines the alien’s
preference classification for a visa and assigns the alien a visa
number. Employment-based visas are subject to numerical
restrictions controlled by the State Department. 8 U.S.C. §
1153(g).
Third and finally, once a visa is “immediately
available,” the alien applies for a status adjustment by filing a
Form I-485 status adjustment application. 8 U.S.C. § 1255(i).
If that application is approved, then the alien becomes a
lawful permanent resident and the DHS issues the alien a
green card.
An individual like Margarito, who would not
ordinarily qualify for lawful permanent residency because he
entered the United States without inspection, may nonetheless
apply if, among other things, he is the beneficiary of a labor
certification application or a visa petition filed on or before
April 30, 2001. See 8 U.S.C. § 1255(i).
Unfortunately, the Contrerases’ former immigration
attorney, Tahir Mella (who was not appellate counsel before
this Court) provided incompetent, and at times ethically
questionable, representation throughout Margarito’s visa
petition process.
In April 2001, Mella prepared a labor certification
application on behalf of Margarito’s long-time employer,
Barrels Italian Foods and Restaurant, and filed it with the
4
DOL before the April 30 statutory deadline. For reasons
unknown, the agency waited more than five years before
approving the application in August 2006. Mella then filed a
visa petition with the USCIS in January 2007. Ten months
after that, in November 2007, the USCIS denied the petition
because Barrels failed to prove that it could afford to pay
Margarito the proffered wage. The USCIS’s written decision,
which it mailed to Mella’s office, indicated that Barrels could
appeal the visa petition denial but that any appeal must be
filed within 33 days. None was ever filed. According to
Mella, he did not file an appeal because Barrels “pulled out”
in December 2007. To the contrary, the owner of Barrels
claims that she has “always been willing to sponsor Margarito
Contreras.”
In January 2008, well after the 33-day appeal window
had closed, Margarito met with Mella to discuss his options.
Mella told him that for $1,000 he could file a “motion to
reopen” the visa petition. Margarito agreed. At some point,
however, Mella instead decided to file a motion to reconsider.
Notably, he neglected to mention to Margarito that the 30-day
time limit to file a motion to reconsider had also passed, see 8
C.F.R. § 103.5(a), but Mella accepted the $1,000. In March
2008 Mella finally filed an untimely motion to reconsider the
USCIS’s denial of the visa petition with the DHS, almost four
months after the USCIS denied the petition and two months
after Margarito paid him the $1,000. The outcome of that
motion (or when it was decided) is not evident from the
record.
Shortly after Mella agreed to file a motion to reopen,
the DHS began removal proceedings against the Contrerases,
charging them with being present unlawfully in the United
States. See 8 U.S.C. § 1182(a)(6)(A)(i). Mella agreed — for
another $5,500 — to represent them at the removal
proceedings. He delegated that representation, however, to
5
others in his office. This delegation was, according to the
Contrerases, contrary to Mella’s agreement to appear
personally in immigration court.
To make matters worse, the attorney Mella sent to the
first removal hearing “might not [have been] fully aware of
the immigration laws,” as the Immigration Judge (“IJ”) later
explained charitably.1 Counsel acknowledged the denial of
Margarito’s visa petition and suggested that a timely appeal
had been filed even though it had not. After further
questioning, however, the IJ sensed that even if the
Contrerases had filed an appeal, it might not have been
timely. Thinking her clients had no other options, counsel
informed the IJ that her clients would be applying for
voluntary departure. The IJ thought the Contrerases would be
“shocked and confused” if she entered an order for voluntary
departure, so she continued the case for a second time to
allow counsel to prepare. The IJ noted that she would
“probably not” continue the case again unless the DHS agreed
or the Contrerases could show that a timely appeal of the
denied employment-based visa petition had been filed.
At the next (and final) hearing in April 2008, yet
another attorney from Mella’s firm represented the
Contrerases. This new attorney indicated that the sole relief
sought was voluntary departure, which the IJ granted. One
1
Among other shortcomings, counsel did not seem to grasp
basic immigration law concepts. For example, she did not
know what a priority date is. Margarito’s priority date is the
date the DOL accepted his labor certification application for
processing: April 27, 2001. See 8 C.F.R. § 204.5(d).
Counsel thought the priority date here was the date Margarito
entered the United States.
6
day before their period of voluntary departure expired, the
Contrerases — through their current counsel — filed a motion
to reopen due to prior ineffective assistance of counsel. The
IJ denied that motion.2
On appeal, the Board of Immigration Appeals (“BIA”)
upheld the IJ’s decision. The Contrerases argued that prior
counsel was ineffective for: (1) filing a labor certification
application with the DOL despite knowing that Margarito’s
employer could not pay the offered wage; (2) failing to file a
timely motion to reconsider the denied visa petition with the
DHS; (3) misleading the IJ by claiming that an appeal of the
denied visa petition had been filed with the DHS; and (4)
failing to request a continuance (rather than voluntary
departure) so that Margarito’s employer could have filed a
new labor certification application and visa petition. The BIA
concluded that the Contrerases failed to “show that the
hearing before the [IJ] was unfair or that, due to any alleged
ineffective assistance of counsel during the course of the
removal proceedings, they were prevented from reasonably
presenting their case.” (Emphasis added.) The BIA further
explained that
[the Contrerases’ primary] arguments of
ineffective assistance of counsel center on
[Margarito’s] pursuit of his application for
adjustment of status by way of an employment-
based visa petition, difficulties over which we
2
The Contrerases claim that the IJ denied their motion to
reopen “based solely on the condition of her docket.” Pet’rs’
Br. 21. The record reveals otherwise. The IJ denied the
motion, among other reasons, because the Contrerases failed
to show that their prior counsel was ineffective or that they
were eligible for adjustment of status.
7
have no jurisdiction. The alleged ineffective
assistance involved counsel who represented
[the Contrerases] before the DHS, counsel who
had been retained several years before these
administrative proceeding were initiated . . . .
(Emphasis in original.) Finally, the BIA concluded that the
IJ’s factual findings were not clearly erroneous and that she
had not erred in concluding that the Contrerases “did not
receive ineffective assistance from [their] former attorney
during the course of the removal proceedings.”
The Contrerases then filed a timely petition for review.
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and
1240.15. We have jurisdiction under 8 U.S.C. § 1252.
II. Standard of Review
When, as here, the BIA affirms an IJ’s decision and
adds analysis of its own, we review both the IJ’s and the
BIA’s decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.
2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d
Cir. 2001). We review the denial of a motion to reopen for
abuse of discretion and may reverse only if the denial is
arbitrary, irrational, or contrary to law. Shardar v. Att’y Gen.,
503 F.3d 308, 311-12 (3d Cir. 2007). We review de novo
questions of law, such as whether petitioners’ due process
rights to the effective assistance of counsel have been
violated. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir.
2007).
III. Discussion
The Contrerases argue that their prior counsel rendered
ineffective assistance both before and during their removal
proceedings and that this ineffectiveness warrants reopening
8
the proceedings. As noted, counsel was allegedly ineffective
before the removal proceedings for (1) filing a labor
certification application with the DOL despite knowing that
Margarito’s employer could not pay the proffered wage and
(2) failing to file a timely motion to reconsider the denied visa
petition with the DHS. The Contrerases also claim that their
counsel was ineffective during the removal proceedings for
(1) misleading the IJ by claiming that an appeal of the denied
visa petition had been filed with the DHS and (2) failing to
request a continuance (rather than voluntary departure) so that
Margarito’s employer could have filed a new labor
certification application and visa petition. We consider the
allegations based on pre-proceeding attorney conduct first and
then turn to the allegations of ineffectiveness during the
removal proceedings themselves.
A. Claims of Ineffectiveness Before Removal
Proceedings
Because immigration proceedings are civil rather than
criminal in nature, the Sixth Amendment right to the effective
assistance of counsel does not apply. Fadiga, 488 F.3d at 157
n.23. But we have recognized (along with a majority of our
sister Courts of Appeals) that “[a] claim of ineffective
assistance of counsel in removal proceedings is cognizable
under the Fifth Amendment — i.e., as a violation of that
amendment’s guarantee of due process.” Id. at 155; see also
Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong
Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3 To
3
Like our Court, the First, Second, Sixth, Ninth, Tenth, and
Eleventh Circuits have held that the Due Process Clause
guarantees an alien a right to assistance of counsel that is
sufficiently effective to prevent removal proceedings from
being fundamentally unfair. See Zeru v. Gonzales, 503 F.3d
9
violate due process, an attorney’s ineffectiveness must be so
severe as to undermine the fundamental fairness of the
removal proceeding. See Fadiga, 488 F.3d at 155 (“[W]here
counsel does appear for the [alien], incompetence in some
situations may make the proceeding fundamentally unfair
and give rise to a Fifth Amendment due process objection.”)
(emphasis in original) (quoting Hernandez v. Reno, 238 F.3d
50, 55 (1st Cir. 2001)).4
59, 72 (1st Cir. 2007); United States v. Perez, 330 F.3d 97,
101 (2d Cir. 2003); Denko v. INS, 351 F.3d 717, 723-24 (6th
Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.
2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.
2003); Dakane v. Att’y Gen., 399 F.3d 1269, 1273-74 (11th
Cir. 2005). The Fourth and Eighth Circuits have held that
there is no such constitutional right. See Afanwi v. Holder,
526 F.3d 788, 798 (4th Cir. 2008), cert. granted, vacated, &
remanded by 130 S. Ct. 350 (Mem.) (2009); Rafiyev v.
Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Panels of the
Seventh Circuit have issued conflicting decisions on the
matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142,
144 (7th Cir. 1993) (recognizing due process right) with
Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005)
(denying due process right). The Fifth Circuit has
“repeatedly assumed without deciding that an alien’s claim of
ineffective assistance may implicate due process concerns
under the Fifth Amendment.” Mai v. Gonzales, 473 F.3d 162,
165 (5th Cir. 2006).
4
We have identified three requirements of due process in
removal proceedings: “An alien: (1) is entitled to factfinding
based on a record produced before the decisionmaker and
disclosed to him or her; (2) must be allowed to make
10
To make out an ineffective-assistance-of-counsel
claim, an alien must show that prior counsel’s deficient
performance prevented him from reasonably presenting his
case and caused him “substantial prejudice.” Fadiga, 488
F.3d at 155; Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.
2006); Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.
2002). To evaluate the merits of an ineffectiveness claim, we
apply the familiar two-part error-and-prejudice test. Fadiga,
488 F.3d at 157. First, we ask whether “competent counsel
would have acted otherwise.” Id. (quoting Iavorski v. INS,
232 F.3d 124, 129 (2d Cir. 2000)). If so, we ask whether
counsel’s poor performance prejudiced the alien. Id. To
prove prejudice, an alien must show that there is a
“reasonable likelihood” that the result of the removal
proceedings would have been different had the error(s) not
occurred. Id. at 159. This standard “properly requires the
alien to show not just that he received ineffective assistance
in his removal proceedings, but that the challenged order of
removal is fundamentally unfair, because there is a significant
likelihood that the IJ would not have entered an order of
removal absent counsel’s errors.” Id.5
arguments on his or her own behalf; and (3) has the right to
an individualized determination of his or her interests.”
Abdulai, 239 F.3d at 549 (internal citations and quotation
marks omitted).
5
In addition to these substantive requirements, the BIA has
three procedural requirements for motions to reopen based on
ineffectiveness claims (the so-called “Lozada requirements”):
(1) the alien’s motion must be supported by an “affidavit of
the allegedly aggrieved [alien] attesting to the relevant facts”;
(2) “former counsel must be informed of the allegations and
allowed the opportunity to respond,” and this response should
11
In Balam-Chuc v. Mukasey, the Court of Appeals for
the Ninth Circuit considered the primary issue we must now
address: whether an alien’s right under the Fifth Amendment
to the effective assistance of counsel during removal
proceedings extends to pre-proceeding attorney conduct in
connection with the visa petition process. 547 F.3d 1044,
1050-51 (9th Cir. 2008). In that case, the Court
acknowledged that poor representation during that process
can result in terrible consequences for an alien and his family.
Nonetheless, it held that “the Fifth Amendment simply does
not apply to the preparation and filing of a petition that does
not relate to the fundamental fairness of an ongoing [removal]
proceeding.” Id. at 1051; see also Lara-Torres v. Ashcroft,
383 F.3d 968, 973 (9th Cir. 2004) (noting that “unfortunate
immigration-law advice” prior to a removal proceeding does
not taint the fairness of the removal hearing itself in violation
of the Fifth Amendment), amended by 404 F.3d 1105 (9th
Cir. 2005).
Balam-Chuc, like the Contrerases, sought lawful
permanent residency under 8 U.S.C. § 1255(i) . He argued
that his attorney failed to file properly his visa petition before
§ 1255(i)’s April 30, 2001 deadline, and that this failure
deprived him of due process. 547 F.3d at 1050. The Court
be submitted with the motion; and (3) “if it is asserted that
prior counsel’s handling of the case involved a violation of
ethical or legal responsibilities, the motion should reflect
whether a complaint has been filed with appropriate
disciplinary authorities regarding such representation, and if
not, why not.” See Matter of Lozada, 19 I. & N. Dec. 637,
639 (BIA 1988). The Government concedes that the
Contrerases’ compliance with the Lozada requirements is not
at issue. See Gov. Br. 19 n.5.
12
noted that this deficiency did “not relate to the substance of
an ongoing hearing; in fact, no proceedings had begun at the
time the alleged attorney misconduct took place.” Id. It
rejected Balam-Chuc’s attempt “to cast . . . an expansive and
amorphous Fifth Amendment due process right that
encompasses legal assistance removed from the actual
[removal] process itself.” Id. at 1051 (quoting Lara-Torres,
383 F.3d at 975).
The Contrerases have offered no authority to the
contrary, nor have we found any. They merely claim that the
BIA “erred as a matter of law when it arbitrarily added an
additional requirement” not found in its prior decision in
Lozada or our decision in Fadiga. Pet’rs’ Br. 19. Those
cases, however, did not address alleged ineffectiveness before
removal proceedings begin.
The Fifth Amendment right to effective counsel in
removal proceedings is narrower than the Sixth Amendment
right to effective counsel in criminal proceedings. As we
have recognized, the process that is “due” an individual
facing removal is the process of a fundamentally fair hearing.
See Fadiga, 488 F.3d at 155, 159; Xu Yong Lu, 259 F.3d at
13; see also Hernandez, 238 F.3d at 55; Castaneda-Suarez,
993 F.2d at 144. To be sure, had prior counsel timely
appealed or sought reconsideration of Margarito’s visa
petition denial, then the IJ may have been willing, in an
exercise of her discretion, to continue the removal
proceedings. But while counsel’s inept conduct prior to the
removal proceedings may have resulted poorly for the
Contrerases, it did not compromise the fundamental fairness
of the removal proceedings themselves. The Contrerases
were still able to present arguments and evidence available to
them at the time of the proceedings. Unfortunately, they had
13
no arguments or evidence that would have provided relief
from removal.6
We cannot end our discussion on this point without
further comment on Mella’s representation before the start of
the removal proceedings, even if it is not subject to due
process scrutiny. Our review of the administrative record
reveals instances of not only incompetence but also
exploitation. For example, Mella required $1,000 from
6
In limited circumstances, the BIA is authorized to consider
ineffective assistance claims involving attorney malfeasance
that occurs outside the context of removal proceedings. For
example, in assessing whether an alien has established
extraordinary circumstances that would excuse the untimely
filing of an asylum application under 8 U.S.C.
§ 1158(a)(2)(D), an IJ (and the BIA) are authorized by
regulation to determine whether the alien’s asylum
application was untimely due to ineffective assistance of
counsel. See 8 C.F.R. § 1208.4(a)(5)(iii). Because an alien
may affirmatively file an application for asylum prior to
removal proceedings, see 8 C.F.R. §§ 103.2(a)(7), 208.2,
attorney malfeasance for failing to file timely may occur
before removal proceedings actually begin. Furthermore, the
Attorney General has authorized the BIA, as an exercise of its
discretion to reopen removal proceedings, to consider
ineffective assistance claims that arise after removal
proceedings have been completed. See Matter of Compean,
25 I. & N. Dec. 1, 1-3 (Att’y Gen. 2009). But the Contrerases
have not identified any statutory provision, regulation, or case
law that supports the proposition that an IJ or the BIA is
similarly required to review an ineffective assistance claim
that arises in the context of collateral matters, such as the
denial of a visa petition.
14
Margarito — two weeks’ pay according to his pay stubs at the
time — to file a motion to reconsider that Mella knew or
should have known would be untimely. As noted, when he
met with the Contrerases in January 2008, both the 33-day
window to appeal the visa petition and the 30-day window to
file a motion to reconsider had closed. With no time left on
the clock to challenge the visa petition denial, but with the
Contrerases’ money in hand, Mella sent himself on a fool’s
errand, what his office readily admits was a “last-ditch
effort.”
Furthermore, we are incredulous that Mella promptly
and effectively discussed with the Contrerases and
Margarito’s employer the possibility of appealing the denied
visa petition. Margarito’s employer’s claims that she has
“always been willing to sponsor Margarito Contreras.” But,
according to a letter from his office, Mella did not appeal the
visa petition because Margarito’s employer “pulled out” in
December 2007 and therefore he had “no ability to challenge
assertions in the denial on appeal.” Admittedly, only a
petitioner (Margarito’s employer) may appeal the denial of an
employment-based visa petition on behalf of the petition’s
beneficiary (Margarito). See 8 C.F.R. § 103.3(a)(1)(iii)(B)
(defining an “affected party” as the “person or entity with
legal standing in a proceeding” and excluding from this
definition the “beneficiary of a visa petition”); id. at §
103.3(a)(2)(i) (providing that an “affected party” may appeal
the denial of a visa petition); id. at § 103.3(a)(2)(v)(A)(1)
(requiring rejection of an appeal filed by a person not entitled
to file such an appeal). But employer support is also
necessary to file a motion to reopen or a motion to reconsider.
See 8 C.F.R. § 103.5(a)(1) (allowing only an “affected party”
to seek reopening or reconsideration of a denied visa
petition). The supposed lack of necessary employer support
that stopped Mella from appealing the visa petition denial in
December 2007 did not stop him from filing the motion to
15
reconsider in March 2008. Simply put, Mella’s filing the
motion belies his excuse for not filing an appeal.
The Contrerases deserved better. Mella’s
representation during the visa petition process fell well short
of the decency and professionalism we expect from the
immigration bar. Navigating the legal complexities and
administrative quagmires of our immigration system is
difficult enough even with the benefit of the most zealous
advocacy. As this case painfully demonstrates, attorney
incompetence — whether the result of carelessness or
dishonesty — can make those difficulties insurmountable.
Regrettably, however, because counsel’s substandard
performance occurred before the removal proceedings were
instituted, we are unable to provide a remedy.
B. Claims of Ineffectiveness During Removal
Proceedings
Turning to the Contrerases’ allegations of their former
counsel’s deficiency during the removal proceedings
themselves, we hold that the BIA did not abuse its discretion
in finding that they did not receive ineffective assistance of
counsel.
First, the record does not show that prior counsel
attempted to mislead the IJ into believing that an appeal of the
denied visa petition had been timely filed, or that such an
attempt caused the Contrerases any prejudice. At the first
removal hearing, counsel (whom the IJ found to be woefully
unfamiliar with the Contrerases’ case) incorrectly stated that a
timely appeal of the denied visa petition had been filed. But
when questioned further about the timing, counsel conceded
that she had been mistaken. The IJ was not misled, as her
decision denying the Contrerases’ motion to reopen noted that
16
counsel was unable to establish that any appeal was timely
filed.
Second, competent counsel would not have requested a
third continuance to file a new labor certification application
because, based on the IJ’s previous comments, such a request
would have been futile. Having already granted two
continuances, the IJ stated on the record that — absent
evidence of a timely filed appeal of the visa petition, an
agreement with the DHS, or some other convincing reason —
she would not grant a further continuance. In addition, the IJ
also observed that she would not likely have granted a
continuance to allow Margarito the opportunity to file yet
another labor certification application due to the processing
times needed for such applications. Based on these
statements, prior counsel seems to have acted reasonably
during the removal proceedings by requesting the only form
of relief available to the Contrerases at that point — voluntary
departure.
Our decision in Khan v. Attorney General also
suggests that the IJ’s stated reasons for her refusal to grant
any further continuances were reasonable. 448 F.3d at 233-
36. If “an alien has failed to submit a visa petition, an IJ’s
decision to deny the alien’s continuance request is squarely
within the IJ’s broad discretion, at least absent extraordinary
circumstances . . . .” Id. at 234. An IJ has no obligation to
grant a continuance that would be essentially “indefinite” if
there is “only the speculative possibility that at some point in
the future” the alien’s labor certification application will be
approved. Id. at 235 (internal quotation marks omitted).7 At
7
After the Contrerases’ removal proceedings, the BIA decided
Matter of Rajah, which clarified the factors an IJ should
consider when determining whether good cause exists to
17
the time of the removal proceedings, the possibility of
Margarito obtaining an approved visa petition was
speculative. His employer had not even submitted a new
labor certification application. The speculative possibility
that the Contrerases might have become eligible for relief
from removal, especially in light of our decision in Khan,
further suggests a request for a third continuance would have
been futile and that competent counsel would not have sought
such a continuance.
Finally, contrary to the Contrerases’ suggestion, it is
not reasonably likely that if prior counsel had requested a
continuance (rather than voluntary departure), they would
have been spared the imminent threat of the ten-year bar of
inadmissibility. See 8 U.S.C. § 1182(a)(9)(B)(i)(II) (“An
alien (other than an alien lawfully admitted for permanent
residence) who . . . has been unlawfully present in the United
States for one year or more, and who again seeks admission
within 10 years of the date of such alien’s departure or
removal from the United States, is inadmissible.”). Margarito
and Norma, having entered the United States unlawfully in
1993 and 1998, respectively, acquired more than one year of
unlawful presence well before they were even placed in
removal proceedings. As discussed above, any motion for a
continuance appeared futile. If prior counsel had not
continue removal proceedings to await the deciding of a
pending employment-based visa petition or labor
certification. 25 I. & N. Dec. 127 (BIA 2009). Importantly,
the BIA held that “pendency of a labor certification
[application] generally would not be sufficient to grant a
continuance in the absence of additional persuasive factors,
such as the demonstrated likelihood of its imminent
adjudication or DHS support for the motion.” Id. at 137.
18
requested voluntary departure, then the IJ would likely have
ordered the Contrerases’ removed involuntarily because they
did not, and still do not, have an approved visa petition
making them eligible for relief from removal. Thus, the
Contrerases’ unlawful presence for more than one year and
their ineligibility for any relief, not any ineffectiveness of
counsel, triggered the impending ten-year bar of
inadmissibility.
* * * * *
For these reasons, we deny the petition for review.
19