Thuy-Xuan Mai v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 13, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-60871
_____________________

THUY-XUAN MAI,

Petitioner,

versus

ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,

Respondent.
_________________________________________________________________

On Petition for Review From a Final Order of
the Board of Immigration Appeals
_________________________________________________________________

Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Thuy-Xuan Mai (“Mai”) petitions for review of an order of the

Board of Immigration Appeals (“BIA”) denying his motion to reopen.

Because we find that the BIA abused its discretion in denying Mai’s

petition on the basis that his counsel was not ineffective, we

remand for a determination whether Mai was prejudiced by his

counsel’s acts.

Mai is a native and citizen of Vietnam who originally entered

the United States as a humanitarian refugee under the Immigration

and Nationalization Act (INA) § 207, 8 U.S.C. § 1157, and who

became a legal permanent resident in 1987. In 1992, Mai pled

guilty to a first-degree felony burglary of a habitation. In March
2001, Mai sought admission to the United States through the port of

entry at Laredo, Texas, where he allegedly claimed to be a

naturalized citizen of the United States. He was detained and

ultimately charged as being subject to removal under INA §

212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000) for a

crime involving moral turpitude and INA § 212(a)(6)(C)(ii), 8

U.S.C. § 1182(a)(6)(C)(ii)(2000) for making a false claim of

citizenship.

During a removal hearing at which no interpreter was present,

Mai’s counsel admitted each of the allegations set forth in the

Notice to Appear (“NTA”), including an allegation that Mai made a

false claim to citizenship. None of the allegations were read out

loud -- counsel simply admitted to them collectively. Mai was

never directly questioned during this hearing. During a subsequent

hearing before a different Immigration Judge (“IJ”), Mai’s counsel

attempted to withdraw the prior admission that Mai had made a false

claim to citizenship. When Mai was questioned directly and in the

presence of an interpreter, he asserted that he had never made a

false claim to citizenship. He offered the testimony of witnesses

and the affidavits of witnesses who could not be present, attesting

that he had never made a claim to false citizenship during the

border crossing. However, the IJ refused to let Mai withdraw the

admissions made by his attorney, and sustained the charges in the

notice to appear. The IJ sustained the false citizenship claim

charge solely on the basis of Mai’s attorney’s admission, as the

2
government provided no evidence on that claim. The BIA affirmed

without opinion. Represented by new counsel, Mai filed a timely

motion to reopen his removal proceedings claiming that his counsel

in those proceedings was ineffective. He sought to have his case

reopened so that he could (1) withdraw his admission to making a

false claim to citizenship and apply for a waiver of

inadmissability under former § 212(c); (2) apply for a § 212(c)

waiver and cancellation of removal pursuant to § 240A; and (3)

apply for withholding, asylum, and relief under the Convention

Against Torture. The BIA denied Mai’s motion to reopen and he

timely appealed to this court.

II.

Our jurisdiction is governed by 8 U.S.C. § 1252. On May 11,

2005, the President signed the REAL ID Act of 2005, which amended

Section 242 of the INA, 8 U.S.C. § 1252, to permit judicial review

of “constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court of appeals in

accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). This

amendment applies retroactively to cases pending at the time of its

enactment. See Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319

(5th Cir. 2005). Because Mai’s motion to reopen is grounded in his

claim for ineffective assistance of counsel, we have jurisdiction

to review his petition.

This court reviews the BIA’s denial of a motion to reopen for

abuse of discretion. Ogbemudia v. INS, 988 F.2d 595, 600 (5th Cir.

3
1993). Such discretion is not to be disturbed “so long as it is

not capricious, racially invidious, utterly without foundation in

the evidence, or otherwise so aberrational that it is arbitrary

rather than the result of any perceptible rational approach.”

Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993) (internal

quotation marks and citation omitted). We review the BIA’s

“rulings of law de novo, but ... defer to the BIA’s interpretation

of immigration regulations if the interpretation is reasonable.”

Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001)

(internal footnote omitted). This court “generally review[s] only

the BIA’s decision because the BIA conducts a de novo review of the

administrative record.” See Alarcon-Chavez v. Gonzalez, 403 F.3d

343, 345 (5th Cir. 2005).

III.

Mai argues that the BIA abused its discretion and violated his

due process rights when it denied his motion to reopen on the basis

that his counsel during his original proceedings was ineffective.

He asserts that the error by his counsel substantially prejudiced

him by preventing a fair presentation of his case, by causing him

to lose his legal status, and by foreclosing otherwise available

defenses.

Although an alien has no Sixth Amendment right to effective

counsel during removal proceedings, Goonsuwan v. Ashcroft, 252 F.3d

383, 385 n.2 (5th Cir. 2001), this court has repeatedly assumed

without deciding that an alien’s claim of ineffective assistance

4
may implicate due process concerns under the Fifth Amendment. See

e.g., Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). While

the source and extent of this due process right remain unclear, we

need not resolve this ambiguity in this case. As Mai points out,

the BIA itself has determined that ineffective assistance of

counsel is a valid ground for reopening a deportation case, see

Matter of Aasad, 23 I. & N. Dec. 553, 556 (BIA 2003), in “egregious

circumstances,” Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA),

aff’d, 857 F.2d 10 (1st Cir. 1988)). “We may assume, without

having to decide because the issue is not raised, that the Board’s

decision to allow aliens to claim ineffective assistance of counsel

as a basis for reopening deportation proceedings is within the

scope of the Board’s discretionary authority even though it is

probably not compelled by statute or the Constitution.” Stroe v.

INS, 256 F.3d 498, 501 (7th Cir. 2001) (Posner, J.).

To support a claim for ineffective assistance, an alien in

removal proceedings must (1) provide an affidavit attesting the

relevant facts, including a statement of the terms of the attorney-

client agreement; (2) inform counsel of the allegations and allow

counsel an opportunity to respond; (3) file or explain why a

grievance has not been filed against the offending attorney. Lara

v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000) (citing Matter of

Lozada, 19 I. & N. Dec. at 629). The alien must also show that

counsel’s actions were prejudicial to his case. Matter of Lozada,

19 I. & N. Dec. at 640. Given that the BIA has created this avenue

5
for relief, the BIA must be “reasoned” in granting it, Allentown

Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998). The

Board’s decision must not be “without rational explanation” and

must not “inexplicably depart from [its] established policies.”

Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir. 1992) (citing

Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990)).

In this case, the BIA found that Mai had met the procedural

requirements of Matter of Lozada, but held that he had failed to

demonstrate prejudice because the decision made by his counsel to

admit both allegations was strategic. The BIA stated:

The respondent argues that his former counsel
prejudiced him when he admitted a false claim
to citizenship allegation, yet denied a false
claim to citizenship charge. We have stated
that absent “egregious circumstances” an
attorney’s statements and actions are binding
on this client. We note that the transcript
of the respondent’s February 25, 2002 hearing
indicates that when former counsel was asked
by the Immigration Judge if denial of the
respondent’s two charges were his tactic in
the case, the former counsel affirmatively
answered that it was his tactic. We cannot
find evidence in the record that former
counsel’s action was an egregious tactical
decision.

The BIA appears therefore to have based its denial of the motion to

reopen on its finding that Mai’s counsel was not ineffective.1

1
The record reflects that the BIA never considered whether
Mai would have been able to defeat the false citizenship charge,
had not his attorney preemptively admitted that allegation. The
record also reflects that the BIA never considered whether Mai
would have received the requested § 212(c) waiver, had his attorney
not admitted to the false citizenship charge.

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We cannot agree with the BIA’s assessment of Mai’s counsel.

The effect of admitting the false claim of citizenship charge was

to cut off all available avenues of relief for Mai without any

apparent counter-advantage. Mai was charged with two independent

grounds of inadmissibility: (1) his previous burglary conviction

and (2) the false claim of citizenship. If Mai’s counsel had

admitted only to the previous burglary conviction, the IJ found

(and no one seems to contest) that he would have been eligible to

apply for a discretionary waiver of inadmissibility from the

Attorney General under the former INA § 212(c), 8 U.S.C. §

1182(c).2 This possibility was foreclosed, however, when Mai’s

The record does show that the IJ found that, but for the
alleged false claim to citizenship, Mai would have been eligible to
seek a § 212(c) waiver. This determination was not overturned by
the BIA in its decisions of August 30, 2004 and November 4, 2004.
In its August 30 decision, the BIA denied Mai’s motion to reopen,
rejecting his ineffective assistance claim; the BIA then separately
considered and denied his alternative request to apply
simultaneously for a § 212(c) waiver and cancellation of removal
and for relief based on his refugee status. The BIA found Mai
ineligible for § 212(c) relief because this type of waiver “is
unavailable to waive two grounds of inadmissibility when one
ground, that being the respondent’s false claim to citizenship, is
not subject to waiver.”

In its decision of November 4, 2004 denying Mai’s motion for
reconsideration, the BIA affirmed its earlier decision holding that
Mai had not established prejudice by his former attorney and that
Mai had not established eligibility for either section § 212(c)
waiver or cancellation of removal, given his attorney’s decision to
admit both charges. Because the BIA concluded that counsel had
behaved strategically in admitting both allegations, it never
considered whether Mai would have qualified for § 212(c) relief,
absent his attorney’s admission.
2
INA § 212(c) stated: “Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not

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counsel admitted to both charges. At that point, a § 212(c) waiver

would have been insufficient to permit Mai to remain in the country

because he would still have been inadmissible on the false claim of

citizenship charge, which, as the IJ found, is non-waivable.3 To

defeat this second charge, Mai would have needed to apply for

cancellation of removal by the Attorney General under INA §

240A(a), 8 U.S.C. § 1229b(b).4 The problem for Mai is that an

alien who has received relief under § 212(c) may not also receive

relief under § 240A. See INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6)

(stating that an alien who has been granted relief under § 212(c)

is not eligible for § 240A relief). Therefore, if Mai received a

waiver of inadmissibility for his burglary conviction under §

under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted
in the discretion of the Attorney General.” This section has since
been repealed, but in INS v. St. Cyr, 533 U.S. 289 (2001), the
Supreme Court held that legal permanent residents who pled guilty
to crimes prior to the repeal of § 212(c) could still apply for
discretionary relief under that provision.
3
Mai’s counsel seems to have attempted to request both §
212(c) and § 212(i) relief from this charge, apparently not
recognizing that the possibility of § 212(c) relief had been
eliminated five years before the date of the false claim charge and
that § 212(i) waiver relief was not ever available for persons
charged with inadmissibility under § 212(a)(6)(c)(ii).
4
INA § 240A(a) provides: “The Attorney General may cancel
removal in the case of an alien who is inadmissible or deportable
from the United States if the alien –
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.”

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212(c), he would automatically be rendered ineligible for

cancellation of removal under § 240A(a) for the false claim of

citizenship charge and would still be inadmissible. As the IJ also

noted during the hearing, Mai was, in any event, ineligible for §

240A cancellation because its prerequisites include seven years of

continuous residence, which in Mai’s case was interrupted by his

burglary offense in 1992. See § 240A(a) (requiring seven years of

residence in the United States after having been admitted in any

status in order to qualify for cancellation of removal); §

240A(d)(1) (stating that continuous residence is deemed to end when

an alien commits an offense referred to in INS § 212(a)(2), 8

U.S.C. § 1182(a)(2) that renders the alien inadmissible).

Thus, by admitting the false claim charge –- a charge Mai

strongly denied -- Mai’s counsel ensured that he was deprived of

all possibility for relief from deportation. The BIA and the

Government have presented no plausible explanation for how

counsel’s strategy resulted in any possible tactical advantage for

Mai; indeed, to the contrary, counsel’s blunder doomed Mai’s

chances for remaining in this country. Under these circumstances

we find that the BIA’s determination that Mai’s counsel’s

admissions were strategic is unsupported by the evidence, and the

BIA abused its discretion in denying the motion to reopen on these

grounds. We therefore grant the petition and remand the case to

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the BIA for consideration of whether, under the agency standard for

ineffective assistance of counsel, Mai was prejudiced.5

PETITION GRANTED; CASE REMANDED.

5
Mai makes several arguments in the alternative. Because we
find that the BIA’s findings as to his ineffectiveness claim were
unsupported by the evidence, we do not reach these additional
claims.