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
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
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
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
`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,