Petition for Review of an Order of the Board of Immigration Appeals (No. A70 657 739)
Before: Sloviter, Rendell, Circuit Judges
and McCLURE,*fn1 District Judge
The opinion of the court was delivered by: McCLURE, District Judge
Argued: September 13, 2002
This is a petition for review of a final order of removal issued by the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge's decision that Julio Donaldo Ponce-Leiva was removable and ineligible for asylum. Ponce-Leiva presents us with two questions. First, did the immigration judge's decision to hold an asylum hearing after Ponce-Leiva's attorney suddenly refused to appear constitute a denial of Ponce-Leiva's right to counsel? Second, did the immigration attorney's failure to appear at the hearing or make a timely request for a continuance constitute ineffective assistance of counsel?
We have jurisdiction to review the BIA's final order. See 8 U.S.C. § 1252(b)(2). We will deny Ponce-Leiva's petition for review.
On April 17, 1997, Ponce-Leiva, a native and citizen of Guatemala, received personal service of a Notice to Appear. The Notice to Appear stated that because Ponce-Leiva had, six years earlier, entered the United States without being inspected or admitted by an immigration officer, he was in violation of § 212(a)(6)(A)(i) of the Immigration and Naturalization Act (INA). It informed Ponce-Leiva that a hearing was scheduled for September 9, 1997. Administrative Record (A.R.) at 119-20.
At the September 9, 1997 hearing, Ponce-Leiva appeared without counsel. The immigration judge informed him of his right to counsel and continued the hearing until November 4, 1997, giving Ponce-Leiva an opportunity to obtain representation.
On November 4, 1997, Ponce-Leiva appeared at the hearing, and this time he was accompanied by counsel. Through counsel, Ponce-Leiva admitted removability and stated that he would pursue asylum. The immigration judge scheduled the merits hearing for July 1, 1998.
On June 29, 1998, two days before the merits hearing, the immigration court received a letter from counsel dated June 25, 1998 requesting a continuance. According to the letter, Counsel would be unavailable for the merits hearing because he planned to be in San Diego. In the letter, counsel offered alternative dates for the hearing. Id. at 109.
On the same day, June 29, 1998, the immigration judge denied counsel's continuance request. The order gave the judge's reason, stating that "you accepted this date on November 4, 1997." Id. at 110.
On July 1, 1998, the merits hearing was held as scheduled. Ponce-Leiva's asylum application raised two grounds for asylum: (1) he needed a job in order to support his family; and (2) if he returned to Guatemala, he would be homeless because his family could not support him. Id. at 104. After explaining that he would proceed with the hearing, the immigration judge questioned Ponce-Leiva on his bases for asylum.
Through a written order and an oral decision, the immigration judge announced his decisions to deny the request for continuance and to deny Ponce-Leiva's application for asylum. Id. at 36-39.
The immigration judge elaborated upon his reason for denying the continuance request. He stated that continuing the hearing was not in Ponce-Leiva's best interest. He noted that while counsel has been collecting fees from Ponce-Leiva, he failed to provide Ponce-Leiva with advice on how to stay in the country. The immigration judge stated that although counsel agreed eight months earlier to appear at the hearing, he abandoned Ponce-Leiva at the last minute. The judge concluded that without any evidence that counsel was a benefit to Ponce-Leiva, Ponce-Leiva was better off if the judge went forward with the hearing. Next, the judge gave more reasons for denying the continuance request: (1) the taxpayers paid for the court time set aside for Ponce-Leiva's case; (2) the expectations of the INS would be upset if cases such as Ponce-Leiva's could not be orderly processed; (3) the ability of the immigration court to manage its docket would be impeded if attorneys could shirk their responsibilities in such a manner; and (4) according to Matter of Santos, 19 I&N Dec. 101 (BIA 1986), the absence of counsel is not necessarily prejudicial error.
The immigration judge then commented on his reasons for denying Ponce-Leiva's application for asylum:
The respondent freely acknowledged that he is an economic migrant and not a "refugee." He stated this in his asylum application. When the Court interrogated him to see if there was any other aspect of his case, it found none. Again, the respondent honestly stated that he came to the United States in order to support himself and his family. The facts show clearly that the respondent was never persecuted in the past, or that he faces a reasonable possibility thereof on account of any factor protected by the [INA].
A.R. at 39. The immigration judge granted voluntary departure.
Ponce-Leiva appealed to the BIA. In his notice of appeal, Ponce-Leiva claimed that in denying the request for continuance, the immigration judge abused his discretion. Id. at 26. In his brief to the BIA, Ponce-Leiva argued that (1) the absence of counsel violated his right to counsel and his due process rights; and (2) counsel provided ineffective assistance of counsel, which violated his due process rights. Id. at 9-12. The brief contained no explicit reference to the immigration judge's decision to deny the continuance request.
On September 24, 2001, the BIA affirmed the immigration judge's decision and dismissed the appeal.
As for the due process claim relating to the absence of counsel, the BIA stated the following:
(1) Because Ponce-Leiva could not show that he was prejudiced by the absence of counsel, there was no due process violation;
(2) "[I]n any event, we have determined that the absence of counsel at his hearing does not alter our conclusion that the decision of the Immigration Judge is correct." The government states that the "decision" referred to in this sentence is the decision to deny counsel's continuance request. Government's Brief at 11.
(3) "We find no procedural or legal errors indicating that [Ponce-Leiva] was either deprived of a full and fair hearing or denied the opportunity to apply for all ...