Hernandez v. Reno

United States Court of Appeals
For the First Circuit

No. 99-2046
No. 99-2102

CARLOS ANTONIO HERNANDEZ,

Petitioner, Appellant,

v.

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL.

Respondents, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Randy Olen for petitioner.
Papu Sandhu, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department or Justice,
with whom David W. Ogden, Assistant Attorney General, Civil
Division, and Emily Anne Radford, Assistant Director, were on
brief for respondents.
 January 26, 2001

BOUDIN, Circuit Judge. Carlos Hernandez is a native

and citizen of the Dominican Republic who entered the United

States as an immigrant in 1982. In 1989, Hernandez was

convicted in state court of distributing cocaine. As a result,

the INS commenced deportation proceedings against Hernandez,

charging him with being removable under section 241 of the

Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251

(1988), because his conviction qualified as an aggravated

felony, id. § 1251(a)(4)(B), and a narcotics violation, id. §

1251(a)(11). (U.S. Code references are to the 1994 edition

unless otherwise indicated.)

In November 1989, Hernandez conceded deportability and

applied for a waiver of deportation under INA section 212(c), 8

U.S.C. § 1182(c). At his hearing which commenced in August

1990, Hernandez argued that his family ties to the United

States, job history, and rehabilitation made him eligible for

discretionary relief from deportation. The immigration judge

disagreed, denying Hernandez' request for waiver because the

"adverse factors in [his] case so greatly outweigh[ed] the

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social and human considerations presented." Hernandez was

ordered deported on September 4, 1992.1

Five days later, Hernandez' counsel filed a timely

notice of appeal with the Board of Immigration Appeals (the

"Board"). The notice stated that a brief on the issues would be

filed separately, but Hernandez' counsel failed to submit one.

As a result, on October 28, 1993, the Board summarily dismissed

the appeal, stating that Hernandez had failed to "meaningfully

identify the particular basis" for his claim. 8 C.F.R. §

3.1(d)(1-a)(i)(A) (1993). Although under then-existing law

Hernandez had the option of appealing the Board's decision to

this court, no appeal was taken. See INA § 106(a), 8 U.S.C. §

1105a(a), repealed by Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, §

242, 110 Stat. 3009-546, -612 (1996) (codified at 8 U.S.C. §

1252 (Supp. II 1996)).

Why Hernandez did not pursue his remedies is unclear.

Hernandez had arguments to make to the Board but none, on our

preliminary review, had great promise of success. Hernandez'

then counsel has since said that he and Hernandez agreed that no

1There were three days of hearings conducted over the course
of two years. Much of the delay resulted from requests by
Hernandez' counsel for continuances and, in at least one
instance, because Hernandez failed to appear at a scheduled
hearing.

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court appeal from the Board's decision should be taken because

it would be hopeless and that it was more useful for Hernandez

to defer any clear-cut affirmance and in the meantime accumulate

"equities." But it is doubtful that Hernandez would endorse

this description of what happened, nor is it certain what

Hernandez was told at the time.

Nevertheless, the strategy--if there was one--was

initially successful. For reasons not explained to us, no

action was taken against Hernandez for almost four years. Then,

in May 1997, the INS issued a so-called "bag and baggage" letter

to Hernandez, which directed him to appear for deportation the

following month. On the day of his scheduled deportation,

Hernandez hired a new attorney who immediately filed a writ of

habeas corpus in the district court, 28 U.S.C. § 2241, and a

motion to reopen his case with the Board, 8 C.F.R. §§ 3.2(a) &

(c) (2000); both pleadings claimed that Hernandez had been

denied due process in the deportation proceedings because of

prior counsel's ineffectiveness.

Although unsure of its jurisdiction, the district court

stayed Hernandez' deportation based on the "facial seriousness"

of his due process claim. Hernandez v. Reno, 63 F. Supp. 2d 99,

100 (D. Mass. 1999). At Hernandez' request, the district court

also stayed his habeas proceeding in light of then-pending

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litigation in which we proposed to consider, inter alia, whether

newly-passed legislation barred section 212(c) discretionary

relief for deportable criminals who had sought a waiver prior to

the new restrictions. Thereafter, in Goncalves v. Reno, 144

F.3d 110, 133 (1st Cir. 1998), cert. denied, 526 U.S. 1004

(1999), we held that the new restrictions did not apply to such

persons.

The district court then proceeded with Hernandez'

petition but now found relief barred by an intervening decision

by the Supreme Court, Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 482-87 (1999), construing section 242(g) of

IIRIRA, 8 U.S.C. § 1252(g) (Supp. II 1996). Hernandez, 63 F.

Supp. 2d at 103. By its terms, that section precludes

jurisdiction by any court, apart from direct court of appeals

review as authorized in that section, over claims:

by or on behalf of any alien arising from
the decision or action by the Attorney
General to commence proceedings, adjudicate
cases, or execute removal orders against any
alien under this chapter.

Read literally, this language could easily be taken to

bar district court habeas jurisdiction insofar as the "claim"

related to any one of the three described types of "decision or

action." The district court viewed the relief sought by

Hernandez --effectively requiring the Board to reopen his

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section 212(c) waiver case--as interfering with the Attorney

General's decision to "adjudicate" cases. Hernandez, 63 F.

Supp. 2d at 103. The court therefore dismissed Hernandez'

petition for lack of subject matter jurisdiction but stayed its

order to permit an appeal, finding the issue "not without

doubt." Id.

Hernandez now appeals, claiming that the district

court's reading of section 242(g) and American-Arab is

inconsistent with our later decision in Wallace v. Reno, 194

F.3d 279, 285 (1st Cir. 1999). The government responds that the

habeas petition was correctly dismissed for lack of jurisdiction

for two other reasons: because former section 106(a) of the

INA, 8 U.S.C. § 1105a(a), made direct review the exclusive

avenue to review deportation orders, and in the alternative,

because Hernandez has failed to exhaust his administrative

remedies, id. § 1105a(c). The government also says that

Hernandez has failed to show either ineffective assistance of

counsel or that the immigration judge erred in denying

discretionary relief to Hernandez.

We are not persuaded by either the district court's or

the government's jurisdictional objections. The district

court's reading of section 242(g) is not without force, but it

was rejected in Goncalves--based on an unwillingness to find an

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implied repeal of habeas corpus. Goncalves, 144 F.3d at 119-23.

Goncalves was reaffirmed in Wallace--notwithstanding American-

Arab. Wallace, 194 F.3d at 284-85. Indeed, while American-Arab

was not concerned with habeas, its surprisingly narrow reading

of section 242(g) indirectly reinforces Wallace and Goncalves.

The government itself agrees that American-Arab's reading of

section 242(g) "does not divest the district court of

jurisdiction."

The government relies instead on former section 106(a)

of the INA. That section, now repealed but still pertinent to

Hernandez' claim, see IIRIRA §§ 309(a) & (c)(1), 8 U.S.C. § 1101

note (Supp. II 1996), made court of appeals review the "sole

and exclusive procedure" to review final orders of deportation.

INA § 106(a), 8 U.S.C. § 1105a(a). But in the pertinent time

frame, section 106 itself explicitly endorsed habeas corpus as

a remedy, id. § 1105a(a)(10), and even if this were not so, the

logic of Goncalves' objection to implied repeal of habeas

applies with equal force where an asserted constitutional

default by counsel forfeits direct review.

In the alternative, the government argues that

Hernandez has failed to exhaust his administrative remedies.

Under former section 106(a)(c), review of an order of

deportation was barred if, inter alia, "the alien has not

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exhausted the administrative remedies available to him as of

right . . . ." 8 U.S.C. § 1105a(c). The government appears to

rely both on Hernandez' past failure to utilize available

remedies and on his present pending motion to reopen. It is

useful to treat past and present remedies separately.

Starting with the past, at one time Hernandez did have

at least two remedies as of right, namely, briefing a timely

appeal to the Board and moving to reopen by September 30, 1996,

8 C.F.R. § 3.2(c)(2) (2000). Sometimes courts do talk of

"failure to exhaust" past remedies that are no longer available,

meaning either that the party did not seek the agency remedy at

all or did not make a particular argument. E.g., Roman-Martinez

v. Runyon, 100 F.3d 213, 220 (1st Cir. 1996). These are

essentially arguments that a claim or contention has been waived

or forfeited--which is quite different than saying that there is

an existing agency remedy that should be invoked before turning

to the courts.

However labeled, the government's objection based on

now-forgone remedies essentially overlaps, in this case, with

the "merits." Hernandez' central claim in the district court

was that counsel's failure seriously to pursue an appeal to the

Board, and his failure entirely to appeal to this court, created

a constitutional defect. If this were so--and we will return to

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the merits shortly--it would be very odd to say that counsel's

unconstitutional conduct created a waiver, forfeit, or failure

to exhaust that prevented his client from ever litigating that

issue. The same is true of the failure to move to reopen within

the time limits.

This brings us back to the pending motion before the

Board. This is not a remedy "as of right" under former section

106(a)(6), because Hernandez' motion to reopen was filed long

after the time period for such motions. 8 C.F.R. § 3.2(c)(2)

(2000). But to the extent that the Board does provide currently

available remedies as a matter of grace, a court is free to

require exhaustion of such remedies--not because of any

jurisdictional objection or statutory command but simply because

it makes sense. See McCarthy v. Madigan, 503 U.S. 140, 144

(1992); Davis, Administrative Law § 15.2 (3d ed. 1994).

The Board, admirably in our view, has sought to cope

with the type of problem raised in this case by setting up a

procedure for respondents to seek reopening of deportation

orders based on incompetence of counsel. In re Lozada, 19 I. &

N. Dec. 637, 639 (BIA 1988). Recognizing that such claims are

easily made and compromise finality, the Board's criteria

require an affidavit describing the alleged agreement with

counsel, notice to counsel (who can respond), and a statement

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whether the alleged default by counsel has been reported to

state authorities and, if so, with what result (and if not, why

not). Id.

In the ordinary case, we agree that the respondent must

use the Board's own procedures to resolve his competency of

counsel claims. Absent a threat of immediate deportation, a

district court should in general decline to entertain a habeas

petition challenging competency of counsel. See Bernal-Vallejo

v. INS, 195 F.3d 56, 64 (1st Cir. 1999). Even if such a threat

impends, the respondent still ought to show good cause why he

has not previously sought a discretionary stay of deportation,

as well as reopening, from the Board. However, unless rigidly

prescribed by statute, exhaustion may be excused where there is

reason to do so. See Sousa v. INS, 226 F.3d 28, 31-32 (1st Cir.

2000).

Here, Hernandez is threatened with immediate

deportation and his petition to reopen has been pending with the

Board for well over three years. Cf. Dabone v. Karn, 763 F.2d

593, 597 n.2 (3d Cir. 1985) (holding that the Board's "failure

to act within a reasonable period" on a motion to reopen may be

treated as an "effective denial"). Under these circumstances,

to await further action by the Board would, on the one hand,

frustrate Congress' plain intent to expedite deportation of

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aggravated felons, see IIRIRA § 304(a)(3), 8 U.S.C. § 1229(d)(1)

(Supp. II 1996), and, on the other, risk deporting Hernandez

without giving him an opportunity to make his constitutional

objection in court. We therefore turn to the merits of the due

process claim.

There is no Sixth Amendment right to counsel in

deportation, which is a civil proceeding, but several courts of

appeals (including this one) have said that where counsel does

appear for the respondent, incompetence in some situations may

make the proceeding fundamentally unfair and give rise to a

Fifth Amendment due process objection. Lozada v. INS, 857 F.2d

10, 13 (1st Cir. 1988). We have said that a process becomes

fundamentally unfair when "the alien [is] prevented from

reasonably presenting his case." Id.

There is one threshold issue. Hernandez has never had

a legal defense to deportation. He does not say that he is not

an alien or that he was wrongly convicted of a deportable crime.

Rather, all that stands between him and deportation is his

request for a section 212(c) discretionary waiver, based on the

Attorney General's weighing of equities. It is this request for

a discretionary waiver that Hernandez says his attorney

mishandled.

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 The Eleventh Circuit has taken the view that waiver

relief is so speculative and so much a matter of grace that "an

attorney's deficient representation does not deprive an alien of

due process if the deficient representation merely prevents the

alien from being eligible for suspension of deportation." Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999), cert.

denied, 121 S. Ct. 563 (2000). Yet waivers are granted or

withheld according to largely fixed criteria, Yepes-Prado v.

INS, 10 F.3d 1363, 1365-66 (9th Cir. 1993), and have an enormous

practical impact. We think it best to treat the speculative and

discretionary character of waivers not as an absolute bar but as

bearing on the likelihood that counsel's conduct affected the

outcome.

Turning then to the due process claim itself, Hernandez

did have a fair opportunity to present his waiver case to the

immigration judge. There was a hearing, substantial testimony,

and a reasoned decision. Hernandez says that his attorney erred

during the proceedings, but these are garden-variety claims that

counsel should have handled matters somewhat differently and in

this context do not even approach a showing that Hernandez has

been deprived of a constitutionally adequate opportunity to make

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his case.2 Thus, everything turns on the claim that counsel's

failure to brief the appeal to the Board and seek review in this

court comprised such a deprivation.

Both steps may have been strategic--Hernandez' counsel

so claims explicitly as to judicial review--but we will assume

arguendo that attorney negligence is involved. Even in a

criminal proceeding, attorney negligence creates a

constitutional flaw only if it is extreme and there is a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 694 (1983); Prou v.

United States, 199 F.3d 37, 49 (1st Cir. 1999), cert. denied,

520 U.S. 1129 (2000). We have reviewed the immigration judge's

decision and cannot find any such "reasonable probability" that

the result would have been different if counsel had carried

through with an appeal to the Board or to this court.

To support his contrary claim, Hernandez points to two

equitable considerations that he argues would have led to the

grant of a waiver by the Board. Hernandez says that the extent

2 Hernandez also points to errors made by the immigration
judge concerning the length of time Hernandez' children were
receiving welfare support, Hernandez' rehabilitation, and
permitting Hernandez' wife to testify. Even accepting these
claims as true (and there is a serious question whether they
are), such "mistakes" fall far short of a denial of due process.
See Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000).

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of his family ties in the United States are an "unusual and

outstanding equity" and that his "genuine rehabilitation" also

weighed in favor of a waiver. As to the first, Hernandez argues

that he has sixty-five "close" family members who are either

U.S. citizens or lawful permanent residents. As evidence of the

second, Hernandez points to his limited criminal history (one

conviction), steady employment, community involvement, and

removal of his family from welfare support.

Having been convicted of a serious drug offense,

Hernandez needed to demonstrate "unusual or outstanding

countervailing equities." Hazzard v. INS, 951 F.2d 435, 438

(1st Cir. 1991). The numerous relatives that Hernandez now

cites as equities are more distant than those that the

immigration judge did consider (his children, wife, mother, and

sisters). It is difficult to see why consideration of such

attenuated relationships should alter the equitable balance. As

for rehabilitation, Hernandez' seems only to have seriously

begun after deportation proceedings originally commenced in

1990.

Conversely, there is at least some evidence of other,

less admirable behavior by Hernandez. This led the immigration

judge to say that even accepting that Hernandez had established

unusual or outstanding equities, he still believed that a waiver

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would not be justified. In all events, we can identify nothing

in Hernandez' case that leads us to believe that there is a

"reasonable probability" that the result of the proceedings

would have been different had an appeal been perfected.

Were this a criminal case, counsel's failure to comply

with a defendant's request to appeal would be treated as

prejudice per se. Roe v. Flores-Ortega, 120 S. Ct. 1029, 1038-

39 (2000). But we are unwilling, unless directed to do so, to

incorporate into civil deportation proceedings the whole

apparatus of Sixth Amendment precedent. But see Dearinger ex

rel. Volkova v. Reno, 232 F.3d 1042, 1045-46 (9th Cir. 2000).

Our concern in the immigration context is not with the Sixth

Amendment but with preserving a fair opportunity to have a

waiver claim considered; it does not include an opportunity to

tie up deportation proceedings in knots through collateral

attacks on defects that would not plausibly have altered the

result.

Whether or not Hernandez' counsel engaged in strategic

behavior in this case, the threat is a very real one. A

convicted criminal sits in jail while his habeas petition is

pending; someone threatened with deportation but at large has

every incentive to string out the deportation process,

especially after an initial adverse decision by the immigration

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judge makes prospects of getting a waiver dim. Sixth Amendment

precedent is worth consulting where counsel's performance is

attacked in a deportation proceeding, but it is not binding and

should not be blindly imported wholesale.

There is an alternative reason in this case why the due

process claim should fail even if we extended the prejudice per

se notion from criminal convictions to review of waiver denials

in deportations. On September 4, 1992, the immigration judge

denied Hernandez' request for waiver (Hernandez having conceded

deportability in 1989). Hernandez does not deny that he knew of

that decision; on the contrary, he says--in a very cursory

affidavit--that his then counsel assured him that he had

appealed and would continue to pursue all avenues; after that,

the affidavit indicates, Hernandez knew little more about what

happened. At most, it appears that Hernandez had a cursory

conversation with his lawyer in 1995.

It is hard to stomach the idea that Hernandez could sit

on his hands for almost five years and then say that he was

unconstitutionally denied an opportunity to pursue an appeal

from the denial of waiver. Knowing that he had been denied a

waiver and was subject to deportation, it would seem that

Hernandez had some duty--as a condition of a successful due

process claim--to monitor his lawyer's actions and assure that

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his appeal was being pursued. Cf. Leblanc v. INS, 715 F.2d 685,

694 (1st Cir. 1983). So far as his affidavit reveals, he did

nothing whatever after 1995 when he says that his then lawyer

told him that there was "no word on the appeal."

Only in 1997, five years after the original denial of

waiver (and on the day he was faced with a bag and baggage

letter order) did Hernandez claim on collateral attack that all

this time he has been denied an opportunity to appeal. What he

now wants is a judicial stay pending his petition to the Board

to reopen or a judicial determination providing him with a new

opportunity to appeal to the Board. This is not due process but

overkill of the kind that has led Congress increasingly to limit

judicial review and to abolish waivers even for those who may

fully deserve them.

Nothing in this opinion should be read as altering the

status of Hernandez' pending motion to reopen. Although we can

identify no due process violation in Hernandez' original

proceedings, it is within the Board's power to reopen Hernandez'

case, and to stay deportation pending its decision on the

motion, if it thinks that the circumstances so warrant. We

express no opinion as to these matters.

The district court's decision is affirmed and this

court's September 9, 1999, stay of deportation is vacated.

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