Coralia Patricia Garcia v. Attorney General of the United States, Immigration and Naturalization Service

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 8, 2003
• Docket: 02-13490
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MARCH 13, 2003 THOMAS K. KAHN No. 02-13490 CLERK ________________________

INS Docket No. A27-707-259

CORALIA PATRICIA GARCIA,

Petitioner,

versus

ATTORNEY GENERAL OF THE UNITED STATES, IMMIGRATION AND NATURALIZATION SERVICE,

Respondents.

__________________________

Appeal from A Final Decision of the Board of Immigration Appeals

_________________________ (March 13, 2003)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

Coralia Garcia, through counsel, appeals the Board of Immigration

Appeals’s (“BIA’s”) affirmance without opinion (“AWO”) of the IJ’s order

denying her a waiver of excludability pursuant to § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h). On appeal, Garcia argues that we

retain jurisdiction to review the denial of relief because § 309(c)(4)(G) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”), does not preclude

review of her claims because the INS did not charge her with inadmissibility under

INA § 212(a)(2); rather, she was charged with deportability under

§ 241(a)(2)(A)(i). She further claims that § 309(c)(4)(E), the provision barring

judicial review of discretionary decisions under INA § 212(h), does not preclude

review of her claims because she does not challenge the discretionary portion of

the IJ’s decision. On the merits, Garcia argues that the IJ applied an erroneous

legal standard in determining her credibility. She further asserts that the BIA

violated her due process rights by issuing an AWO because her appeal did not fit

the criteria for an AWO. Finally, she claims that her due process rights were

violated as a result of her prior counsel’s ineffective assistance because he failed

to properly document her application for relief.

We review subject matter jurisdiction de novo. Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002). Garcia’s deportation proceedings were pending

on or before April 1, 1997, and the final order of deportation was entered more

than 30 days after September 30, 1996, therefore, IIRIRA’s transitional rules

2 apply. See IIRIRA § 309(c)(1) & (4); Al Najjar v. Ashcroft, 257 F.3d 1262, 1276

(11th Cir. 2001); Lettman v. Reno, 168 F.3d 463, 464 (11th Cir.), vacated in part,

185 F.3d 1216 (1999).

For cases falling under the transitional rules, the former 8 U.S.C. § 1105a, in

conjunction with enumerated subsections in IIRIRA § 309(c)(4), govern judicial

review. See IIRIRA § 309(c)(4). Of pertinence to this appeal, IIRIRA

§ 309(c)(4)(G) restricts judicial review over deportation orders for certain criminal

aliens as follows:

there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the [INA] (as in effect as of the date of the enactment of this Act [Sept. 30, 1996]), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act [crimes of moral turpitude] (as so in effect).

IIRIRA § 309(c)(4)(G).

Despite the application of the jurisdictional bar under IIRIRA

§§ 309(c)(4)(G), we have interpreted this section and its counterpart in the IIRIRA

permanent rules, 8 U.S.C. §§ 1252(a)(2)(C), as allowing room for some judicial

review of removal orders entered against criminal aliens. See Lettman, 168 F.3d

3 at 464-65; Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598-99 (11th

Cir. 2000), cert. denied, 533 U.S. 949 (2001). We have jurisdiction to determine

whether Garcia is an alien who is inadmissible based on her commission of a

covered offense. See IIRIRA § 309(c)(4)(G); cf. Fernandez-Bernal, 257 F.3d at

1308.

Before IIRIRA, aliens who had not made an entry into the United States

were charged with grounds of exclusion under INA § 212(a) and placed into

exclusion proceedings under former section 236 of the INA, 8 U.S.C. § 1226

(1996). Aliens who had made an entry were charged with grounds of deportation

under former INA § 241 and placed into deportation proceedings under former

INA § 242B, 8 U.S.C. § 1252b (1996). See generally Landon v. Plasencia, 459

U.S. 21, 25-27, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) (discussing

differences between exclusion and deportation proceedings under the former

INA). The INS initiated the proceedings against Garcia by charging her with

grounds of deportation, not exclusion, presumably because she had entered the

United States.

Also prior to IIRIRA, INA § 212(a)(2) generally rendered excludable an

alien convicted of, who admits having committed, or who admits acts which

constitute the essential elements of a crime of moral turpitude. See 8 U.S.C.

4 § 1182(a)(2) (1996). Likewise, former INA § 241(a)(2)(A)(i) rendered deportable

an alien convicted of a crime of moral turpitude, which was committed within five

years of entry and for which the alien was sentenced to confinement of a year or

more. See 8 U.S.C. § 1251(a)(2)(A)(i) (1996). IIRIRA replaced the term

“excludable” with “inadmissible.” See IIRIRA § 308(d). While IIRIRA

§ 309(c)(4)(G) restricts judicial review of aliens inadmissible by reason of having

committed an offense covered in INA § 212(a)(2), it does not restrict review of

aliens deportable for one crime of moral turpitude under former INA

§ 241(a)(2)(A)(i). The issue presented here is whether IIRIRA § 309(c)(4)(G) is

implicated where the INS charged Garcia with deportability for a crime of moral

turpitude pursuant to § 241(a)(2)(A)(i), and the IJ ordered Garcia deported on that

ground, but the IJ also found Garcia statutorily ineligible for an adjustment of

status because she was inadmissible under INA § 212(a)(2). (See AR at 56); INA

§ 245, 8 U.S.C. § 1255 (1995) (alien’s status may be adjusted if she is admissible

to the United States).

Fernandez-Bernal, decided under the IIRIRA permanent rules and relied

upon by the Attorney General (“AG”), is distinguishable. There, this Court held

that it lacked jurisdiction to review an alien’s petition seeking review of a removal

order because the alien had “admit[ted] to committing” an offense covered under

5 INA § 212(a)(2), notwithstanding that the INS had charged him with being

“convicted of” an offense covered by INA § 212(a)(2). See Fernandez-Bernal,

257 F.3d at 1309-10. The Court reasoned that the alien was charged under INA

§ 212(a)(2) and that he had notice and an opportunity to be heard on the charge,

and concluded that the alien “was in fact removable” under INA § 212(a)(2). Id.

& 1311 n.8. Unlike in Fernandez-Bernal, Garcia was not charged on a ground that

triggers the jurisdictional bar.

Given that Garcia was given notice both of the crime upon which the INS

was seeking deportation, and the classification of that crime as one involving

moral turpitude, it appears that IIRIRA § 309(c)(4)(G) has been triggered in this

case. In denying Garcia an adjustment of status, the IJ expressly found her

inadmissible under INA § 212(a)(2). In a similar case, the First Circuit held that

IIRIRA § 309(c)(4)(G) divested it of jurisdiction to review an alien’s petition for

review, where the alien was charged on deportation grounds that did not trigger

the bar but, at a hearing on his adjustment-of-status application, admitted

committing acts covered by INA § 212(a)(2). See Ruckbi v. INS, 159 F.3d 18,

19-21 (1st Cir. 1998). Applying the bar to Garcia’s petition would not appear to

raise due-process concerns because, like the alien in Fernandez-Bernal, Garcia has

had an opportunity to contest her inadmissibility under INA § 212(a)(2).

6 The record indicates that Garcia is an alien who was convicted of the crime

of aggravated child abuse, in violation of §§ 827.03(1)(3) and 784.045(1) of the

Florida Statutes. “Moral turpitude” has been defined by this Court as involving,

“baseness, vileness, or depravity.” Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th

Cir. 2002). Whether a crime is one of moral turpitude depends on the inherent

nature of the offense, rather than a particular individual’s conduct. Id. at 1215-16.

Under Florida law, aggravated child abuse occurs when a person (a) commits an

aggravated battery on a child; (b) willfully tortures a child; (c) maliciously

punishes a child; or (d) willfully and unlawfully cages a child. Florida Stat.

§ 827.03(1) (1990). Although this Court has not spoken squarely on this issue, the

Ninth Circuit has held that child abuse constitutes a crime involving moral

turpitude. See Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (9th Cir.

1969) (inflicting cruel corporal punishment or injury upon a child is so offensive

to American ethics as to end the debate of whether moral turpitude was involved

in the crime of child beating). Based upon the inherent nature of the crime of

aggravated child abuse, Garcia has committed a crime of moral turpitude, and is

therefore inadmissible based upon her conviction for that crime.

Also, in construing the bar in the IIRIRA permanent rules, this Court has

determined that, if the bar applies, it nonetheless retains jurisdiction to consider

7 constitutional challenges to the INA or any other “substantial constitutional

issues” arising out of the alien’s removal proceedings. See Galindo-Del Valle,

213 F.3d at 598-99. Likewise, the Court has indicated that it retains jurisdiction to

consider substantial constitutional claims in a petition for direct review of an

immigration decision covered by the transitional rules. See Farquharson v. United

States Attorney General, 246 F.3d 1317, 1322 (11th Cir. 2001) (Court reached the

merits of the deportation order, then indicated it could review substantial

constitutional claims, noting in dicta that IIRIRA § 309(c)(4)(G) does not

foreclose constitutional challenges).

However, where a constitutional claim has no merit, the Court does not have

jurisdiction. See Brooks at 1272-73. In order to establish a due process violation,

an alien must show that he or she was deprived of liberty without due process of

law, see Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478

(1976), and that the asserted error caused him substantial prejudice, see Ibrahim v.

U.S.I.N.S., 821 F.2d 1547, 1550 (11th Cir. 1987). Garcia claims to raise three

constitutional challenges which avoid the jurisdictional bar.

First, Garcia alleges that the IJ applied an incorrect legal standard because

he relied upon facts not in the record and engaged in “impermissible speculation.”

However, Garcia does not specify what legal standard was used incorrectly, nor

8 does she state what standard she proposed to be correct. Instead, she attempts to

frame what is essentially a challenge to the IJ’s assessment of her credibility as

“pure question of law.” What Garcia is truly arguing is that the IJ’s finding was

not supported by evidence in the record, which is not reviewable by this Court as

an exception to the jurisdictional bar.

Based upon the foregoing analysis of her claim regarding the allegedly

incorrect legal standard, Garcia’s claim that the BIA violated her due process

rights by issuing an AWO is also without merit. Garcia argues that she raises a

substantial constitutional question because she claims that the BIA violated her

due process rights by granting an AWO, although her appeal was not suitable for

the AWO procedure. Pursuant to 8 C.F.R. § 3.1(a)(7), a single member of the BIA

may affirm, without opinion, the decision of the IJ if that Board member

determines that the result was correct and that any errors were harmless and

immaterial, and that (A) the issue on appeal is squarely controlled by existing

precedent; and (B) the factual and legal questions raised are so insubstantial that

three-member review is not warranted. 8 C.F.R. § 3.1(a)(7)(ii). Such an order

does not necessarily imply approval of all of the reasoning of the IJ’s decision, but

does signify that any errors were harmless or immaterial. See id. § 3.1(a)(7)(iii).

The decision of the IJ becomes the final agency decision. 8 C.F.R. § 3.1(a)(7)(iii).

9 As we stated in a recently-published opinion, there is no entitlement to a full

opinion by the BIA. See Gonzalez-Oropeza v. U.S. Attorney General, No. 02-

12706 (11th Cir. February 19, 2003). Therefore, where a case falls within the

requirements of § 3.1(a)(7), there is no due process violation as a result of the

issuance of an AWO. Id.

Contrary to Garcia’s claim, there was no substantial legal issue presented to

the BIA on appeal. Rather, Garcia presented a solely factual challenge to the IJ’s

findings. Her brief to the BIA stated that the IJ erred in evaluating the factors

involved in her case and erroneously included, “non-existent adverse factors . . .

brought by the judge to over-balance the positive factors present.” This is far from

a legal argument regarding the application of an incorrect legal standard. Rather,

it is merely a challenge to the IJ’s credibility determination. As such, a resolution

of Garcia’s appeal fell squarely within BIA precedent and there were no

substantial legal issues raised by Garcia which precluded issuance of an AWO.

This case fell squarely within the requirements of § 3.1(a)(7) and was appropriate

for AWO. Therefore, Garcia’s claim that the issuance of the AWO was a

constitutional violation is without merit.

Finally, Garcia claims that her counsel at the hearing was ineffective

because he failed to submit proper documentation of her claims in the form of

10 adoption records and business information to support Jorge’s claims that his

family business would be forced to close. She also claims that, to the extent that

she failed to exhaust any of her claims presented to this Court, that was due to the

ineffective assistance of her counsel on appeal.

Aliens have the right to effective assistance of counsel at deportation

proceedings. Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). To

establish ineffective assistance of counsel in the context of a deportation hearing,

an alien must show that counsel’s performance was so deficient that it impinged

upon the fundamental fairness of the proceedings. Id. As noted in Mejia-

Rodriguez, there is disagreement between the circuits as to whether a petitioner

must exhaust his or her ineffective assistance of counsel argument before the BIA

before presenting it to this Court. Id. at 1144 n. 4. However, as in Mejia-

Rodriguez, the Court need not resolve this issue because Garcia’s ineffective

assistance claim is without merit.

In Mejia-Rodriguez, this Court held 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, because suspension of deportation is a discretionary decision. Id. at

1148. In the present case, Garcia alleges that her counsel’s alleged ineffective

11 assistance in not properly documenting her claim led to the IJ’s denial of her

waiver of excludability. She attempts to distinguish Mejia-Rodriguez on the

grounds that she is married to a citizen and has a citizen child, and therefore has a

greater expectancy interest in remaining in the United States. Mejia-Rodriguez,

on the other hand, sought suspension of deportation under § 244 of the INA, but

did not have a qualifying relative and therefore sought an “act of grace.” Mejia-

Rodriguez at 1147. This Court’s holding in Mejia-Rodriguez is not

distinguishable on that ground. This Court clearly held that the failure to receive

relief that is purely discretionary in nature does not amount to a deprivation of a

liberty interest. Id. at 1146. Waiver of excludability under § 212(h), while guided

by interpretive decisions, remains a purely discretionary form of relief, and under

Mejia-Rodriguez, aliens do not enjoy a constitutionally protected liberty interest in

a purely discretionary form of relief. Id. at 1147; Balogun v. U.S. Attorney

General, 304 F.3d 1303, 1310-11 (11th Cir. 2002); Oguejiofor v. Attorney

General, 277 F.3d 1305, 1309 (11th Cir. 2002).

We conclude that we do not have jurisdiction to consider the petition for

review, and therefore the Attorney General’s motion to dismiss is hereby

GRANTED.