Assaad v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 9, 2004
• Docket: 03-60201
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 9, 2004 July 19, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-60201

BASSEL NABIH ASSAAD

Petitioner

v.

JOHN ASHCROFT, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the Board of Immigration Appeals

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Bassel Nabih Assaad petitions this court to review the Board

of Immigration Appeals’s decision denying his motion to reopen.

For the following reasons, we dismiss the petition for review.

I. BACKGROUND

Assaad, a Syrian citizen, entered the United States as a

nonimmigrant visitor in 1993. He later married a U.S. citizen,

and, in June 1995, the Immigration and Naturalization Service

(INS) granted his application for conditional resident status

under 8 U.S.C. § 1186a (2000). Assaad divorced his wife in

1 January 1996 and petitioned the INS for a good-faith marriage

waiver, see § 1186a(c)(4)(B), which would entitle him to

permanent resident status despite the fact that he was no longer

married to a U.S. citizen. The INS denied the petition and

terminated Assaad’s conditional resident status. On May 17,

1997, the INS initiated removal proceedings by serving Assaad

with a Notice to Appear, charging him with being subject to

removal for overstaying his permission to remain in the United

States. See 8 U.S.C. § 1227(a)(1)(B) (2000).

Before the Immigration Judge (IJ), Assaad denied the

allegations supporting his deportability and requested review of

the INS’s denial of his petition for a good-faith marriage

waiver. Assaad presented documentary and testimonial evidence

that he believed supported his claim that he entered into his

marriage in good faith. The IJ denied Assaad’s waiver request,

however, finding that Assaad had not proven that he entered into

his marriage in good faith.

Assaad hired a second attorney to handle his appeal to the

Board of Immigration Appeals (BIA). This new attorney submitted

Assaad’s appeal one week past the filing deadline. Thus, the BIA

dismissed the appeal as untimely on September 19, 2000, without

addressing the merits of Assaad’s good-faith marriage waiver

application. Assaad contends that his attorney never notified

him that the appeal was denied, a fact he discovered in January

2001 only after learning that the INS was seeking his arrest.

2 On February 12, 2001, after hiring a third attorney, Assaad

filed a motion to reopen his immigration proceedings with the IJ

claiming that his second attorney had been constitutionally

ineffective. The INS opposed Assaad’s motion to reopen, noting

that it was not filed within the 90-day window provided by

statute and BIA regulations. See id. § 1229a(c)(6)(C)(i) (2000);

8 C.F.R. § 3.2(c)(2) (2001). Assaad responded that the IJ could

nevertheless reopen the case on his own motion in light of the

exceptional situation presented by his attorney’s

ineffectiveness. See 8 C.F.R. § 3.2(a). The IJ declined to

exercise this power and instead denied Assaad’s motion to reopen

as untimely.

Assaad appealed the IJ’s decision to the BIA, arguing that

the time limit for filing the motion to reopen should have been

tolled by his attorney’s failure to inform him that his initial

appeal to the BIA had been dismissed. Ultimately, the BIA

dismissed Assaad’s motion to reopen after concluding that, even

though Assaad met the BIA’s procedural requirements for an

ineffective-assistance-of-counsel claim, see In re Lozada, 19 I.

& N. Dec. 637, 639 (BIA 1988), he was not entitled to relief

because he had provided no evidence in his motion to reopen

showing that he was prejudiced by his attorney’s failure to file

the initial BIA appeal in a timely manner. In re Assaad, 23 I. &

N. Dec. 553 (BIA 2003). Assaad now petitions this court for

review of the BIA’s denial of his motion to reopen.

3 II. DISCUSSION

As an initial matter, the government argues that we lack

jurisdiction to review the BIA’s denial of Assaad’s motion to

reopen under 8 U.S.C. § 1252(a)(2)(B)(ii),1 which bars judicial

review of “any . . . decision or action of the Attorney General

the authority for which is specified under this subchapter to be

in the discretion of the Attorney General.” According to the

government, this section bars federal court review of Assaad’s

petition because the BIA has complete discretion in deciding

whether to grant an alien’s motion to reopen. See INS v.

Doherty, 502 U.S. 314, 323 (1992) (“The granting of a motion to

reopen is . . . discretionary, and the Attorney General has

‘broad discretion’ to grant or deny such motions.” (citations

omitted)); 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a

motion to reopen . . . is within the discretion of the Board.”).

Although Assaad concedes that we have, in the past, afforded

the BIA wide discretion in addressing motions to reopen, see,

e.g., Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002), he does

not agree that Congress intended to strip federal courts of the

1 Congress severely restricted federal court jurisdiction over numerous categories of BIA decisions through § 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), see Pub. L. No. 104-208, 110 Stat. 3009-546, -607 to -612 (codified at 8 U.S.C. § 1252 (2000)). These permanent rules govern judicial review of proceedings commencing after April 1, 1997. See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir. 2004). Since the INS initiated removal proceedings against Assaad on May 17, 1997, § 1252’s provisions apply to this case.

4 power to review the BIA’s denials of these motions. For example,

he notes that § 1252(b)(6), which instructs that “any review

sought of a motion to reopen . . . shall be consolidated with the

review of the order [of removal],” would be rendered meaningless

by the government’s interpretation of § 1252(a)(2)(B)(ii). His

position finds further support in Medina-Morales v. Ashcroft, 371

F.3d 520 (9th Cir. 2004). There, the Ninth Circuit held that the

plain language of § 1252(a)(2)(B)(ii) does not bar judicial

review of motions to reopen because the BIA’s discretion to grant

or to deny these motions “derives solely from regulations

promulgated by the Attorney General, rather than from a statute.”

Id. at 528 (citations and internal quotation marks omitted).

Under the facts of this case, we need not resolve the thorny

question whether § 1252(a)(2)(B)(ii) precludes judicial review of

all motions to reopen, however. Importantly, even if we were to

assume that § 1252(a)(2)(B)(ii) does not, by its terms, generally

bar judicial review of motions to reopen, we would still conclude

that we lack jurisdiction over Assaad’s petition for review.

As at least three other circuits have explained, Congress

explicitly granted federal courts the power to review “final

order[s] of removal” in § 1252(a)(1), and “[i]mplicit in this

jurisdictional grant is the authority to review orders denying

motions to reopen any such final order.” Patel v. United States

Attorney General, 334 F.3d 1259, 1261 (11th Cir. 2003); accord

Chow v. INS, 113 F.3d 659, 664 (7th Cir. 1997), abrogated on

5 other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998);

Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997). Yet, just

as our power to review a final order is circumscribed by

§ 1252(a)(2)’s various jurisdiction-stripping provisions, our

“jurisdiction to entertain an attack on that order mounted

through filing of a motion to reopen” is equally curtailed.

Patel, 334 F.3d at 1262 (citing cases); accord Dave v. Ashcroft,

363 F.3d 649, 652 (7th Cir. 2004); cf. Mayard v. INS, 129 F.3d

438, 439 (8th Cir. 1997) (applying the IIRIRA’s transitional

rules). In other words, “where a final order of removal is

shielded from judicial review” by a provision in § 1252(a)(2),

“so, too, is [the BIA’s] refusal to reopen that order.” Patel,

334 F.3d at 1262.

Applying this principle to the case at hand, it is clear

that § 1252 deprives this court of jurisdiction over the BIA’s

denial of Assaad’s motion to reopen. In its final order of

removal, the BIA affirmed the IJ’s finding that Assaad is not

entitled to a good-faith marriage waiver of his removability

under § 1186a(c)(4)(B). There is no question that, had Assaad

directly petitioned this court for review of the BIA’s final

order, § 1252(a)(2)(B)(ii) would have barred our jurisdiction

over his appeal. See Urena-Tavarez v. Ashcroft, 367 F.3d 154,

160 (3d Cir. 2004) (holding that “[s]ection 1252(a)(2)(B)(ii)

clearly precludes judicial review of decisions under section

1186a(c)(4)” because the statute specifies that those decisions

6 are purely discretionary). Therefore, because this court would

not have had the authority to review a direct petition, we hold

that Assaad cannot manufacture jurisdiction simply by petitioning

this court to review the BIA’s denial of his motion to reopen.

Nevertheless, before we may conclude that the IIRIRA’s

permanent rules completely foreclose our jurisdiction over

Assaad’s motion to reopen, we must first determine whether the

ineffective-assistance-of-counsel argument in his motion to

reopen presents a “substantial constitutional claim.” See

Balogun v. Ashcroft, 270 F.3d 274, 278 n.11 (5th Cir. 2001)

(observing that courts “retain jurisdiction to consider . . .

substantial constitutional claims,” even when the jurisdiction-

stripping provisions of immigration law purport to deprive the

courts of jurisdiction); see also Dave, 363 F.3d at 652. This

circuit has yet to decide whether an alien has a constitutional

right to effective counsel in removal proceedings, see, e.g.,

Miranda-Lores v. INS, 17 F.3d 84, 85 n.1 (5th Cir. 1994);

however, dicta from our previous cases indicate that while the

Sixth Amendment does not afford aliens such a right, an

attorney’s ineffective assistance may implicate the Fifth

Amendment’s due process guarantee if the “representation afforded

[the alien] . . . was so deficient as to impinge upon the

fundamental fairness of the hearing.” Paul v. INS, 521 F.2d 194,

198 (5th Cir. 1975).

Notwithstanding this possibility, Assaad’s motion to reopen

7 does not allege a violation of his Fifth Amendment right to due

process because “the failure to receive relief that is purely

discretionary in nature does not amount to a deprivation of a

liberty interest.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146

(11th Cir. 1999) (citing Conn. Bd. of Pardons v. Dumschat, 452

U.S. 458, 465 (1981)); accord Nativi-Gomez v. Ashcroft, 344 F.3d

805, 808 (8th Cir. 2003); see also Munoz v. Ashcroft, 339 F.3d

950, 954 (9th Cir. 2003) (“Since discretionary relief is a

privilege . . . , denial of such relief cannot violate a

substantive interest protected by the Due Process clause.”); cf.

Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (“[A]

statute which ‘provides no more than a mere hope that the benefit

will be obtained . . . is not protected by due process.’”

(alteration in original) (quoting Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1, 11 (1979))). Assaad’s

ineffective-assistance claim hinges on his attorney’s failure to

file a timely appeal from the IJ’s denial of his application for

a good-faith marriage waiver of his removability under

§ 1186a(c)(4)(B). As we explained above, an alien who believes

he entered into his marriage with a U.S. citizen in good faith is

not entitled to receive a waiver of his removability. Rather, as

the statute expressly states, the decision whether to grant this

relief is entirely “[with]in the Attorney General’s discretion.”

§ 1186a(c)(4); see Nyonzele v. INS, 83 F.3d 975, 979-81 (8th Cir.

1996). Accordingly, because Assaad’s attorney’s allegedly

8 deficient performance merely restricted his chances of receiving

a discretionary waiver of his removability, we conclude that he

has not alleged a violation of his due process rights.2 Cf.

Mejia Rodriguez, 178 F.3d at 1147 (“[W]here a statute or

regulation does not limit the executive’s discretion to award

relief, an expectancy of such relief does not give rise to a

liberty interest protected by the Due Process Clause.”); Nativi-

Gomez, 344 F.3d at 809 (“However broadly and amorphously the

concept of constitutionally protected liberty interests has been

defined . . . it does not include statutorily created relief that

is subject to the unfettered discretion of a governmental

authority.”). Assaad’s petition for review, therefore, does not

present a “substantial constitutional claim.”

III. CONCLUSION

For the foregoing reasons, we DISMISS Assaad’s petition for

review for lack of jurisdiction.

2 Importantly, we do not today decide that the Fifth Amendment guarantees aliens the right to the effective assistance of counsel in immigration proceedings. Rather, we simply hold that, even assuming such a constitutional right exists, Assaad’s petition for review does not allege a violation of that right.