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THEN v. I.N.S.

United States District Court, District of New Jersey


June 22, 1999

SIMON B. THEN, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

The opinion of the court was delivered by: Lechner, District Judge.

OPINION

This is an action brought by pro se. petitioner, Simon B. Then ("Then"), a detainee at the Detention Center of the Immigration and Naturalization Service (the "INS"), in Newton, New Jersey, against respondent, the INS.*fn1 Presently pending is the petition (the "Petition") of Then for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Section 2241"). Then specifically seeks relief from a final order of deportation (the "Final Order of Deportation").*fn2

For the reasons set forth below, the Petition is dismissed with prejudice.

Background

A. Facts

Then is a native and citizen of the Dominican Republic. See Petition at ¶ 5. He entered the United States in 1983. See id. at ¶ 7.

In October 1993, a State grand jury indicted Then in a four-count indictment (the "Indictment"). The first two counts of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-10a(1), 2C:35-5a(1) and 2C:35-5b(3). See Judgment of Conviction and Order of Commitment (the "Judgment and Order"). Count three ("Count Three") of the Indictment charged Then with possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 and 2C:35-5a. See id. The fourth count charged Then with violating N.J.S.A. 2C:28-4a for writing false reports. See id.

On 15 March 1995, Then pleaded guilty to Count Three of the Indictment (the "Guilty Plea"). See Then Aff. at ¶ 4. A judgment of conviction (the "Judgment of Conviction") was issued by the New Jersey Superior Court, Law Division, Passaic County (the "Superior Court") on 30 June 1995. See Judgment and Order. Then was sentenced to a minimum prison term of fourteen months. See Then Aff. at ¶ 5; Judgment and Order.

The Guilty Plea rendered Then deportable pursuant to Section 241(a)(2)(B)(i) ("Section 241") of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly 8 U.S.C. § 1251).*fn3 Consequently, upon his completion of the fourteen month prison term, Then was placed by the INS in deportation proceedings. See Then Aff. at ¶ 3. Deportation proceedings were commenced on or about 12 August 1996 when the Government issued a Notice of Hearing and an Order to Show Cause requiring Then to show cause why he should not be deported.*fn4 See Amended Answer at 1. After appearing without counsel before immigration judge John A. Duck, Jr. (the "Immigration Judge") on 29 October 1996, see Then Aff. at ¶ 6; Amended Answer at 2, Then was permitted to hire an attorney and was released upon posting bond. See id. at ¶ 7. Then thereafter consented to having his new attorney, Jose W. Vega, Esq. ("Vega") conduct the subsequent deportation proceedings and appear on his behalf. See Then Aff. at ¶ 7; Amended Answer at 2.

On 7 March 1997, a deportation hearing (the "7 March 1997 Deportation Hearing") was held before the Immigration Judge. According to the Government, at that time, Vega, on behalf of Then, requested a waiver of deportation (the "212(c) Application"), pursuant to Section 212(c) ("Section 212(c)") of the INA, 8 U.S.C. § 1182(c).*fn5 See 7 March 1997 Deportation Hearing Transcript (the "Deportation Hearing Tr.") at 5:6-10.*fn6

In an oral decision, dated 7 March 1997, (the "7 March 1997 Decision"), the Immigration Judge refused to grant the 212(c) Application. In so doing, the Immigration Judge stated:

  [Then] has asked to apply, through counsel, for a
  212(c) waiver. However, I note that the respondent
  [Then] has been convicted for the crime of possession
  of cocaine and heroine with intent to distribute
  within 1,000 feet of a school. I find, therefore,
  that that [sic] crime is an aggravated felon [sic],
  making him ineligible for that 212(c) waiver sought
  by the respondent. There is not [sic] other relief
  sought nor is there any known by the government or
  this Court. . . . Therefore, it is the order of the
  Court that the respondent be deported from the United
  States to the Dominican Republic. . . .

7 March 1997 Decision at 1-2.

It appears the Immigration Judge, in refusing to grant the 212(c) Application, placed reliance upon Section 241(a)(2)(B)(i) of the INA. See 8 U.S.C. § 1227(a)(2)(B)(i); see also supra n. 3. It further appears the Immigration Judge took into account § 440(d) ("Section 440(d)") of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, tit. I, § 105(2), 110 Stat. 1214 (24 April 1996) (the "AEDPA"). Section 440(d) added the following language to Section 212(c):

  [Section 212(c)] shall not apply to an alien who is
  deportable by reason of having committed any criminal
  offense covered in Section 241(a)(2)(A)(iii)
  [aggravated felony], (B) [controlled substance
  offenses], (C) [firearms offenses], or (D) [offenses
  against national security]. . . . AEDPA § 440(d), 110
  Stat. 1214, 1217 (emphasis added).*fn7 Based

  upon the Judgment of Conviction of Then which, as
  stated, fell under Section 241(a)(2)(B)(i), the
  Immigration Judge found Then statutorily ineligible
  for a waiver under Section 212(c).

Also during the 7 March 1997 Deportation Hearing, Vega, on behalf of Then, admitted the five allegations contained in the Order to Show Cause and conceded Then's deportability. See Deportation Hearing Tr. at 3-4; Amended Answer at 2.

Vega appealed the 7 March 1997 Decision to the Board of Immigration Appeals (the "BIA") on 10 April 1997 (the "Appeal"). See Then Aff. at ¶ 10. In support of the Appeal, Vega, on behalf of Then, argued:

  The Respondent [Then] should be eligible for a 212(c)
  waiver. He was convicted prior to the enactment of
  the Antiterrorism and Effective Death Penalty Act.
  This Act should not be applied retroactively.
  Furthermore, the Respondent is being denied equal
  protection of the laws by not being allowed an
  opportunity to apply for a 212(c) waiver because if
  he was in exclusion proceedings he would be eligible
  for this waiver. See Matter of Silva, 16 I & N Dec
  26 (BIA 1996)[sic].

See Appeal.

By order, dated 28 January 1998, (the "28 January 1998 Order"), the BIA deemed the Appeal untimely because it was not filed within thirty calendar days of the 7 March 1997 Decision. See 28 January 1998 Order. The BIA stated: "The Immigration Judge's decision is accordingly now final[.]" Id.; See Then Aff. at ¶ 10.

Following the denial of the Appeal by the BIA, Vega indicated to Then's family, via facsimile transmittal (the "Vega Facsimile"), that even if timely filed, the Appeal would have been denied because the AEDPA is applied retroactively to all cases by the BIA. See Then Aff. at ¶ 11; Vega Facsimile attached thereto.

In support of the instant Petition, Then alleges (1) his constitutional right to due process was violated when the Immigration Judge retroactively applied AEDPA Section 440(d) to bar his 212(c) Application, see Petition at ¶¶ 2, 3, 16-17, and (2) he was denied effective assistance of counsel. Then specifically alleges Vega waived his rights to a fair hearing before the Immigration Judge by admitting all the charges lodged against him by the INS without his permission. See id. at ¶ 3; Then Aff. at ¶ 8. He further alleges Vega, despite knowing an appeal not filed by 7 April 1997 would be deemed untimely, nevertheless filed the Appeal on 10 April 1997. See Then Aff. at ¶ 10. Then alleges the Appeal

  d[id] not examine the legal consequences derived from
  the [Immigration Judge's] retroactive application of
  the [AEDPA] enacted by April 24, 1996. . . . I was
  placed in deportation proceedings for a
  drug-possessory crime committed on October 26, 1993,
  at least 2 years before the creation of the aforesaid
  statutes by Congress.

Petition at ¶ 2.

B. Procedural History and Intervening Law

As noted, Then originally filed the Preliminary Injunction Application seeking to enjoin the INS from deporting him and seeking to obtain release from his present incarceration at the Detention Center pending "a full and fair hearing on the merits of the 212(c) case." See Petition at Prayer for Relief ¶ 3.

The Preliminary Injunction Application was denied by order and opinion, dated 14 December 1998. See Then I, 37 F. Supp.2d at 362. Then I also directed the Government to file an answer by 15 January 1999. See id. In compliance with Then I, the Government filed the Answer to the Petition on 11 January 1999. See Answer. The Answer alleged, inter alia, Congress removed jurisdiction from the district courts to review immigration decisions with the exception of "core constitutional issues protected by the Suspension Clause*fn8 of the Constitution."*fn9 Answer at 4. The Answer additionally alleged Vega's admission of the five allegations against Then at the 7 March 1997 Deportation Hearing did not prejudice Then because the allegations were, in fact, accurate. See Answer at 7-8. The Government further alleged the untimely Appeal did not prejudice Then because the Immigration Judge correctly denied the 212(c) Application. See id. at 11.

Then filed a reply to the Answer on 25 January 1999 (the "Reply Brief"). In the Reply Brief, Then argued that habeas jurisdiction survived the enactment of AEDPA Section 440(a). See Reply Brief at ¶ 2. With regard to his claim of ineffective assistance of counsel, Then specifically alleged Vega was "legally ineffective" because he failed to "develop any Pre-AEDPA or Pre-IIRIRA defense or legal basis, . . . file a brief in support of the appeal . . . [or] file a motion to reopen and reconsider." Id. at ¶¶ 11-12. Additionally, Then alleged Section 440(d) was erroneously applied retroactively to bar his 212(c) Application and requested the matter be remanded to the BIA for an examination of his entitlement to a waiver under Section 212(c). See id. at ¶ 1.

Before Then filed his Reply Brief, however, the Third Circuit rendered its opinion in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999). In Sandoval, the Circuit concluded Federal jurisdiction remained available under Section 2241*fn10 to review habeas petitions seeking relief from final orders of deportation. 166 F.3d at 231-32. It was reasoned that neither the AEDPA nor the IIRIRA contained a clear statement of Congressional intent to eliminate habeas jurisdiction.*fn11 See id. In light of Sandoval, the Government filed the Amended Answer to the Petition on 15 March 1999. The Amended Answer omitted its earlier jurisdictional argument, impliedly conceding the existence of subject matter jurisdiction over the Petition.

On 9 April 1999, Then filed an amended reply brief (the "Amended Reply Brief"). The Amended Reply Brief reasserts the admissions by Vega at the 7 March 1997 Deportation Hearing concerning Then's deportability were "unconsulted" and Vega's "inappropriate behavior caus[ed] [Then] actual prejudice." See Amended Reply Brief at ¶¶ 3, 7. Then urges the rejection of a retroactive application of Section 440(d) and requests remand of his case for "an individual[ized] 212(c) hearing." See id. at Prayer for Relief.

Discussion

A. Standard of Review for Pro Se Submissions

Pro se submissions, "`however inartfully pleaded,' must be held to `less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); see also Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652, reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992) (holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Lewis v. Attorney General of United States, 878 F.2d 714, 722 (1989).

When receiving a pro se submission from a habeas petitioner, the habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis, 878 F.2d at 721; United States v. Brierley, 414 F.2d 552, 555 (3d Cir.), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970) ("We should recognize that a habeas corpus petition prepared by a prisoner without the aid of counsel may be inartfully drawn and should therefore be read `with a measure of tolerance.' It is the policy of courts to give a liberal construction to pro se habeas petitions.") (citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines, 404 U.S. at 520, 92 S.Ct. 594; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).

B. Application of the AEDPA

As discussed, Section 440(a) of the AEDPA amended Section 106(a) of the INA by removing judicial review of final orders of deportation for aliens convicted of certain criminal offenses. In light of Sandoval, which specifically held that courts retain habeas jurisdiction under Section 2241 notwithstanding the application of Section 440(a), 166 F.3d at 231, the AEDPA analysis is limited to the alleged retroactive application of Section 440(d) of the AEDPA.

As discussed in Then I, the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), reaffirmed the presumption against statutory retroactivity. The Court established a two-prong test in determining whether a statute may be applied retroactively. First, it must be determined whether "Congress has expressly prescribed the statute's proper reach." Id. at 269-70, 114 S.Ct. 1483. Second, in the absence of express specification of the temporal reach of a statute, consideration is given to "whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at 268, 114 S.Ct. 1483.

Addressing the first prong, it appears the AEDPA does not contain an express provision governing the temporal reach of Section 440(d). See AEDPA § 440(d), 110 Stat. 1214, 1217; see also Lee v. Reno, 15 F. Supp.2d 26, 44 (D.D.C. 1998). Absent an express textual directive of prospectivity, the normal rules of construction apply. See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). This Circuit, interpreting Lindh, has also stated: "[T]he rule of negative implication is part of the normal rules of statutory construction." Sandoval, 166 F.3d at 240 (citing Lindh, 521 U.S. at 326, 117 S.Ct. 2059).

Applying these principles, the Sandoval court concluded that both the legislative history and the principle of negative implication supported a prospective application of Section 440(d) of the AEDPA.*fn12 Consequently, the court determined it was unnecessary to address the second prong of the Landgraf analysis because "the statutory construction inquiry yield[ed] the answer that Congress intended prospectivity[.]" 166 F.3d at 240 (citing Lindh, 521 U.S. at 326, 117 S.Ct. 2059) (internal quotations omitted).

As stated, Section 440(d) of the AEDPA amended, in part, Section 212(c). Section 212(c) permitted deportable aliens convicted of certain crimes to apply for a waiver of deportation. Before the enactment of the AEDPA, this discretionary relief was unavailable strictly to aliens convicted of aggravated felonies or crimes of moral turpitude. Section 440(d) of the AEDPA, enacted 24 April 24 1996,*fn13 added drug offenses to the list of exceptions. See AEDPA § 440(d).

Then was convicted of the unlawful possession and distribution of a controlled dangerous substance with intent to distribute on 30 June 1995. See Judgment and Conviction. The deportation proceedings commenced with the filing of the Order to Show Cause on 12 August 1996. Subsequently, Vega, on behalf of Then, made the 212(c) Application on 7 March 1997 during the Deportation Hearing. See Deposition Hearing Tr. at 5:6-10. It appears the conviction of Then pre-dated the enactment of Section 440(d). The deportation proceedings, however, which included the filing of the Order to Show Cause, and the 212(c) Application, succeeded the enactment of Section 440(d).

Then urges a strictly prospective application of Section 440(d), which, in his view, would make him eligible for a 212(c) waiver. See Petition at ¶¶ 2, 16-17; Amended Reply Brief at ¶ 9. Notwithstanding a prospective application of 440(d), as requested by Then and mandated by Sandoval, Then remains ineligible for a Section 212(c) waiver.

Significantly, the Sandoval court held only that "the AEDPA amendment to 212(c) was not to be applied to pending cases." 166 F.3d at 240 (emphasis added). In that case, the petitioner, Sandoval, had been convicted of marijuana possession in 1993. See id. at 228. In 1994, during the deportation hearing, Sandoval requested a four month stay of deportation, ostensibly because he was four months shy of meeting the seven-year residency requirement for Section 212(c) eligibility. See id. The immigration judge denied his request. Sandoval appealed the denial of the 212(c) application to the BIA. See id. While the appeal was pending, Congress enacted the AEDPA. See id.

The Circuit determined discretionary relief under Section 212(c) was available to Sandoval and directed the BIA to decide the merits of Sandoval's 212(c) application. See id. at 242. In so doing, it was reasoned: "The provision precluding discretionary relief for those convicted of drug offenses [Section 440(d)] was not in effect at the time Sandoval sought to petition under INA [Section] 212(c)." 166 F.3d at 239 (emphasis added). It appears, therefore, Sandoval strictly precludes retroactive application of Section 440(d) to pending 212(c) applications. Consequently, the application of Section 440(d) to petitioners whose convictions pre-dated the enactment of AEDPA, but whose deportation proceedings and 212(c) applications post-dated the statute, is not foreclosed by Sandoval.

This Circuit, moreover, has addressed a similar prospectivity issue in Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996). Scheidemann held that a related provision of the INA, which similarly rendered a class of felons ineligible for Section 212(c) relief, was not retroactive in application to convictions pre-dating the enactment of the statute. The petitioner in Scheidemann was convicted of an aggravated felony in 1987. See 83 F.3d at 1519. At the time of his conviction, the statutory bar to discretionary relief for those convicted of an aggravated felony was not included in the 212(c) waiver provision; it was added to Section 212(c) by Congress on 29 November 1990. See id. Scheidemann, although convicted prior to the statutory bar, did not request Section 212(c) relief until four years after the addition of the aggravated felony bar. See id. at 1519. The preceding conviction notwithstanding, the Third Circuit held: "Because petitioner applied for [Section] 212(c) relief after November 29, 1990 . . . he is properly subject to the statutory bar." Id. at 1526.*fn14

District courts interpreting Sandoval have applied Section 440(d) to aliens whose convictions pre-dated its enactment, but who applied for Section 212(c) waivers after the enactment date. In Cedillo-Gonzalez v. Garcia, 38 F. Supp.2d 479 (W.D.Tex. 1999), the court, in denying the 212(c) application of a petitioner, held:

  Here, Petitioner did not file his [Section] 212(c)
  application until after the effective date of
  [Section] 440(d). As such, the facts here do not fall
  within the four corners of Sandoval. . . .
  Consequently, the Court finds that [Section] 440(d)
  does apply to Petitioner in spite of the fact that
  the underlying conviction that instigated his
  deportation occurred before the enactment of the 1996
  amendments.

Id. at 486 (emphasis added); cf. Olvera v. Reno, 20 F. Supp.2d 1062, 1066 n. 10 (S.D.Tex. 1998) (stating "issue [of non-retroactivity] does not arise in this case because [petitioner's] deportation proceedings began after the AEDPA was enacted."); Homayun v. Cravener, 39 F. Supp.2d 837, 850-51 (S.D.Tex. 1999) (granting 212(c) waiver application to petitioner when discretionary relief was requested before the enactment of Section 440(d)); Farquharson v. INS, 31 F. Supp.2d 403, 414 (D.N.J. 1999) (stating the "AEDPA § 440(d) should not be applied to criminal aliens who filed applications for waivers before the statute was enacted") (emphasis added).

In the instant case, the deportation proceedings, commenced on 12 August 1996 with the issuance of the Order to Show Cause, were initiated well after the enactment of the AEDPA on 24 April 1996. See Amended Answer at 1; see also Then Aff. at ¶¶ 5, 6. The 212(c) Application was not requested until 7 March 1997. See Deposition Hearing Tr. at 5:6-10. Even though Then was convicted before the enactment of the AEDPA, the non-retroactivity concerns expressed in Landgraf and Sandoval are not present here. See Scheidemann, 83 F.3d at 1519; see also Fullwood v. Reno, No. 98-4252, 1999 WL 350142, at *2 (E.D.Pa.21 May 1999); Olvera, 20 F. Supp.2d at 1066 n. 10; Almon v. Reno, 13 F. Supp.2d 143, 144 n. 1 (D.Mass. 1998) (applying Section 440(d) where 212(c) application of petitioner was not pending when the AEDPA was enacted); Lee, 15 F. Supp.2d at 26, 44 n. 26 (same).

Because the deportation proceedings and the 212(c) Application post-dated the enactment of the AEDPA, Section 440(d) operates only prospectively towards Then; moreover, it does not impair any rights of Then or impose on him additional liabilities. See Lindh, 521 U.S. at 326, 117 S.Ct. 2059; Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; Sandoval, 166 F.3d at 240. The Petition, insofar as it alleges the application of 440(d) violated the due process rights of Then, is dismissed.

C. Ineffective Assistance of Counsel

Then additionally alleges he was denied effective assistance of counsel because Vega admitted the charges lodged against him during the 7 March 1997 Deportation Hearing without his permission. See Petition at ¶ 3. It is further alleged Vega subsequently failed to timely file the Appeal to the BIA. See Then Aff. at ¶¶ 7, 8, 10. Then asserts that a "Per Se Rule of Prejudice" should be applied to the conduct of Vega. See Amended Reply at ¶ 8.

A claim of ineffective assistance of counsel in a deportation proceeding is based on the Fifth Amendment guarantee of due process. See Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (deportation proceedings are civil in nature; they do not give rise to a Sixth Amendment right to counsel); Michelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990); Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986); Then I, 37 F. Supp.2d at 359; cf. Green v. INS, 46 F.3d 313, 320 (3d Cir. 1995). An alien may have a viable claim of ineffective assistance of counsel where counsel is "so ineffective as to have impinged upon the fundamental fairness of the [deportation proceedings] in violation of the [F]ifth [A]mendment [D]ue [P]rocess [C]lause." Castaneda-Suarez, 993 F.2d at 144 (quoting Magallanes-Damian, 783 F.2d at 933); see Saleh v. United States Dep't of Justice, 962 F.2d 234, 241 (2d Cir. 1992); Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989); Lozada, 857 F.2d at 13. In this regard, "the Fifth Amendment, like the Sixth Amendment, is not automatically violated by serious attorney errors." Motta v. INS, 869 F. Supp. 80, 88-89 (D.Mass.) (citing Scarpa v. DuBois, 38 F.3d 1 (1st Cir. 1994)), vacated on other grounds, 61 F.3d 117 (1st Cir. 1995).

1. Failure of Vega to Appeal*fn15

Outside of the deportation context, "[a]n attorney's failure to take or perfect an appeal when the defendant has indicated a desire to appeal constitute[s] ineffective assistance of counsel per se." Sortino v. United States, No. 94-5114, 1994 WL 502373, at *1 (E.D.Pa.), aff'd, 54 F.3d 771 (3d Cir. 1995). To prove his or her claim, a petitioner is not required to show he or she was prejudiced by the failure of counsel to appeal or to state which issues he or she would have raised on direct appeal. See Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991) (per curiam) ("Lozada"); Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992). Rather, the "failure to take an appeal, despite the [petitioner's] request, is ineffective assistance without regard to the probability of success on appeal." Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994). The petitioner, however, must have requested his or her counsel to file an appeal:

  `Request' is an important ingredient in this formula.
  A lawyer need not appeal unless the client wants to
  pursue that avenue. . . . [T]he Constitution does not
  require a lawyer to advise the client of the right to
  appeal. That duty rests principally on the judge —
  and even if both judge and counsel forget to provide
  this advice, most defendants know about the
  possibility of appeal and cannot complain if they are
  not furnished redundant information. `Counsel will
  not be found ineffective per se for failure to appeal
  an appealable judgment.' Oliver v. United States,
  961 F.2d 1339, 1342 (7th Cir.) [, cert. denied,
  506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992)].
  Only a failure to appeal a judgment that the
  defendant desires to appeal is problematic.

Id.; see also McHale v. United States, 175 F.3d 115, 118-19 (2d Cir. 1999) (citing Morales v. United States, 143 F.3d 94, 96 (2d Cir. 1998)) ("[I]n order to show that appellate counsel was constitutionally deficient in not filing an appeal, the petitioner must demonstrate that he [or she] asked to have an appeal filed."); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).

In Castellanos, the petitioner told his lawyer to appeal, but the lawyer refused, informing him that one may not appeal from a sentence based on a plea of guilty. Castellanos, 26 F.3d at 718. The Seventh Circuit remanded the matter for the determination of "whether Castellanos . . . timely told [his] lawyer[] that [he] wanted appellate review." Id. at 720.

The communication to counsel of a petitioner's desire to appeal also is a prerequisite to viability of ineffective assistance claims in the immigration context. Specifically, in Matter of Lozada, 29 I & N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988), the BIA announced requirements for motions to reopen or reconsider based upon allegations of ineffective assistance of counsel:

  A motion based upon a claim of ineffective assistance
  of counsel should be supported by an affidavit of the
  allegedly aggrieved respondent attesting to the
  relevant facts. In the case before us, the affidavit
  should include a statement that sets forth in detail
  the agreement that was entered into with former
  counsel with respect to the actions to be taken on
  appeal and what counsel did or did not represent to
  the respondent in this regard.

Id. at 639 (emphasis added); see also Motta, 869 F. Supp. at 88-89 (analyzing whether agreement between petitioner and counsel was reached for counsel to appeal decision of immigration judge).

Irrespective of whether the failure of counsel to effectuate a timely appeal of a decision of an immigration judge is per se prejudicial, it appears the actions of Vega do not constitute a fundamental miscarriage of justice in violation of the Fifth Amendment. Specifically, it appears from the Petition and Then Affirmation that Then did not communicate to Vega his desire to appeal the denial of this 212(c) Application. Then alleges he was "informed by [Vega] that he'll take care of the [7 March 1997] [D]eportation [P]roceeding while [Then] returned to [his] family in New Jersey." See Then Aff. at ¶ 7. As observed in Then I, neither the Petition nor Affirmation alleges Then requested Vega to file the Appeal. See Then I, 37 F. Supp.2d at 361.

Only after Then I was filed, discussing this very point, did Then responsively argue: "I was told of the denial [of the 212(c) Application at the Deportation Hearing] and agreed with him to file the appeal." See Reply Brief at ¶ 6. Then's apparent lack of interest in the deportation proceedings, as evidenced by his waiver of his right to appear for the 7 March 1999 Hearing, see Then Aff. at ¶¶ 7, 8, belies this assertion. In his recent submissions, moreover, Then again fails to allege he explicitly requested an appeal. See Amended Reply Brief. Then simply alleges Vega "filed a late notice of appeal." Id. at ¶ 4A, 4B.

As discussed, effective assistance of counsel requires only that counsel respect the desire of the client to file an appeal. See United States ex rel. O'Brien v. Maroney, 423 F.2d 865, 868 (3d Cir. 1970) ("[T]o insure the effectiveness of such assistance, the appointed trial attorney has been charged with the duty of respecting his [or her] client's desire to file an appeal, even if in his [or her] best professional judgment the appeal is utterly without merit."). "Only a failure to appeal a judgment that the defendant desires to appeal is problematic." Castellanos, 26 F.3d at 719. As explained, it appears from the Petition and the Then Affidavit that Then did not ask for an appeal.

Additionally, as stated, it appears Then was not present at the 7 March 1997 Deportation Hearing. See Then Aff. at ¶ 7. Then, therefore, was not present when the Immigration Judge informed Vega of the right to appeal. See Deportation Hearing Tr. at 5:20-21. "An alien cannot be heard to complain when, with notice of a deportation hearing, he [or she] voluntarily fails to appear for the hearing, and it is held in his [or her] absence." Sewak v. INS, 900 F.2d 667, 672 (3d Cir. 1990); see Reyes-Arias v. INS, 866 F.2d 500, 504 (D.C.Cir. 1989); United States v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974). Then concedes he gave Vega permission to handle all matters relating to his deportation proceedings. See Then Aff. at ¶ 7. He cannot now use his lack of interest in the 7 March 1997 Deportation Hearing as a means of obtaining a different result. Based on his initial failure to establish in the Petition or Then Affirmation that he requested an appeal, and his continued inconsistency in alleging same, Then has not evinced he communicated any desire to appeal.

2. Prejudice

Then, moreover, has not demonstrated he was prejudiced by Vega's admission of the allegations contained in the Order to Show Cause. "To prevail on a claim of ineffective assistance of counsel at a deportation proceeding, an alien must show not only ineffective representation, but also prejudice to him [or her] which occurred as a result of that ineffectiveness." Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) (citing Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir. 1986)); accord Sene v. INS, 103 F.3d 120, 1996 WL 667906, at *1 (4th Cir.19 Nov. 1996) (per curiam). An alien has been prejudiced if, but for the ineffectiveness of counsel, the outcome of the deportation proceedings may have been different. See Barraza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir. 1990).

Then, has not, and cannot, show that the outcome of the deportation proceedings may have been different but for the conduct of Vega. It appears the admissions of Vega concerning Then's deportability were ineffectual in light of independent evidence establishing his deportability. See Golub Certification at Exhibits A, B and D.*fn16 The only facts Vega admitted at the 7 March 1997 Deportation Hearing were facts conceded by Then in the Petition to be true, namely that he is an alien and that he had a drug conviction.

Also, discretionary relief under Section 212(c) was no longer available to aliens whose deportation proceedings commenced after April 1996. See AEDPA § 440(d). As such, the Immigration Judge did not err in relying upon Section 440(d) to deny the Section 212(c) Application.

As discussed, moreover, Then voluntarily refused to appear at the 7 March 1997 Deportation Hearing, and therefore "cannot be heard to complain[.]" Sewak, 900 F.2d at 672; see Reyes-Arias, 866 F.2d at 504; Dekermenjian, 508 F.2d at 814. Then was given notice of the 7 March 1997 Deportation Hearing and afforded an opportunity to appear and offer evidence on his behalf. Then, however, concedes he gave Vega permission to handle all matters relating to his deportation proceedings. See Then Aff. at ¶ 7. Nowhere is it alleged that Then also gave Vega specific instructions not to admit the allegations contained in the Order to Show Cause. See Matter of Lozada, 19 I & N Dec. At 639 (ineffective assistance of counsel claim in immigration hearing requires proof that the attorney ignored instructions given by alien).

Because Then has not alleged prejudice resulting from the application of Section 440(d) to bar his Section 212(c) waiver or the conduct of Vega, the ineffective assistance of counsel claim is dismissed with prejudice as well.

Conclusion

For the reasons discussed, the Petition is dismissed with prejudice. There is no probable cause for appeal.


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