Pimentel v. INS

Opinion

USCA1 Opinion

October 29, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1569

EMERSON PIMENTEL,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

__________________

                          ON PETITION FOR REVIEW OF AN ORDER
                         OF THE BOARD OF IMMIGRATION APPEALS

___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                                 Torruella and Selya,
                                   Circuit Judges.
                                   ______________

                                  __________________

               Peter A. Allen on Motion to Hold Case in Abeyance.
               ______________
               Stuart  E.  Schiffer,  Acting  Assistant  Attorney  General,
               ____________________
          Robert  Kendall,  Assistant  Director,  and  Charles   E.  Pazar,
          _______________                              ___________________
          Attorney,  Office  of  Immigration  Litigation,  on    Motion  to
          Dissolve Automatic Stay of Deportation.

__________________

                                  __________________

Per  Curiam.  Petitioner seeks review of the May 6,
                      ___________

            1993 order of the Board  of Immigration Appeals (BIA) denying

            petitioner's motion to reopen deportation proceedings so that

            petitioner   might  apply   for  discretionary   relief  from

            deportation.   We  summarily  affirm the  May 6,  1993 order,

            grant  the INS's  motion to  dissolve the  automatic  stay of

            deportation, and  deny petitioner's motion to  hold appellate

            proceedings in abeyance.

                                          I

                 Petitioner  was  ordered  deported  after  he failed  to

            appear  at  a  deportation hearing  or  present  any defense.

            Petitioner promptly  appealed to the BIA and  moved to reopen

            the deportation  proceedings so  that petitioner might  apply

            for discretionary  relief  from  deportation.    Petitioner's

            motion to reopen,  filed by his first counsel, indicated that

            petitioner had not received notice of the deportation hearing

            because  INS correspondence  had been  sent to an  address at

            which petitioner "was not residing at the time of delivery."

                 The BIA dismissed  the appeal and denied reopening.   In

            so doing, it  pointed out that petitioner's  motion to reopen

            had  not  been  accompanied  by  affidavits  and  evidentiary

            material  as required  by  8  C.F.R.    3.8(a)  and that  the

            address petitioner had stated in his notice of appeal was the

            very address to which INS correspondence had been sent.

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Petitioner, represented  by new counsel,  promptly moved

            to  reopen  once again,  this  time  filing affidavits.    He

            claimed he had never told  his first counsel that he did  not

            live  at the  address to  which INS  correspondence had  been

            sent;   he  simply  had  not  received   any  notice  of  the

            deportation hearing.  Petitioner's mother stated by affidavit

            that she had the only key to the residence's mailbox and she,

            too,  had not  received notice  of  the deportation  hearing.

            Petitioner argued he  should not be  penalized for his  first

            counsel's failings.

                 Concluding  that petitioner  had  not complied  with the

            requirements set forth in Matter of Lozada, 19 I & N Dec. 637
                                      ________________

            (BIA  1988),  for  seeking  reopening based  on  a  claim  of

            ineffective   assistance   of   counsel,   the   BIA   denied

            petitioner's motion to reopen.  Petitioner now seeks judicial

            review of that decision.

                                          II

                 In Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), where
                    ________________

            an  appeal  from  a  deportation  order  had  been  summarily

            dismissed because no brief had  been filed, the BIA announced

            a  "high standard"  for motions  seeking  reopening based  on

            claims 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,  that   affidavit  should   include  a
                 statement that  sets forth in detail  the agreement

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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.   Furthermore,  before
                 allegations  of  ineffective assistance  of  former
                 counsel are presented to  the Board, former counsel
                 must be informed of the allegations and allowed the
                 opportunity to  respond.   Any subsequent  response
                 from counsel,  or report  of  counsel's failure  or
                 refusal to respond,  should be  submitted with  the
                 motion.   Finally,  if it  is  asserted that  prior
                 counsel's handling of the case involved a violation
                 of  ethical or  legal responsibilities,  the motion
                 should reflect  whether a complaint  has been filed
                 with appropriate disciplinary authorities regarding
                 such representation, and if not, why not.

                      The high standard announced here is  necessary
                 if we  are  to  have  a  basis  for  assessing  the
                 substantial  number  of  claims   of    ineffective
                 assistance of  counsel that come  before the Board.
                 Where  essential  information  is  lacking,  it  is
                 impossible to evaluate the substance of such claim.
                 In the instant  case, for  example, the  respondent
                 has not alleged, let alone established, that former
                 counsel ever agreed to prepare a  brief on appeal .
                 . ..  The requirement that disciplinary authorities
                 be notified of breaches of professional conduct not
                 only   serves   to   deter   meritless  claims   of
                 ineffective representation but  also highlights the
                 standards which should be expected of attorneys who
                 represent persons in immigration proceedings . . ..

                 The  BIA  concluded  petitioner had  not  complied  with

            Lozada as petitioner had not detailed his agreement  with his
            ______

            first counsel, had  not shown whether  he had notified  first

            counsel of  his charges, and  had failed to state  whether he

            had filed a disciplinary complaint.

                 The   BIA  did  not  abuse  its  discretion  in  denying

            petitioner's motion to reopen.  First, petitioner's affidavit

            was very  sketchy in  describing his  arrangement with  first

            counsel.   Petitioner stated that within a  week of receiving

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an order to show cause why he should not be deported,  he had

            contacted counsel, whom, petitioner claimed "had already been

            paid  for this  case"; counsel  had  said not  to worry;  and

            petitioner  "was under  the  impression" that  counsel  would

            enter an appearance.  After  receiving a copy of the decision

            ordering deportation, petitioner had again contacted counsel.

            Counsel had again  told petitioner not to worry  and that "he

            would get  me my United States citizenship." One of counsel's

            employees then helped petitioner file a notice of appeal, and

            petitioner paid the employee $620.  

                 The BIA  could reasonably conclude  that petitioner  had

            not  sufficiently  detailed   his  agreement  with   counsel.

            Petitioner  asserted that  counsel had  been  paid for  "this

            case,"  yet petitioner was  only "under the  impression" that

            counsel  would  file  an appearance.    Petitioner  failed to

            detail what counsel actually agreed to do with respect to the

            deportation proceedings. 

                 Second, petitioner  failed timely  to show  that he  had

            notified first counsel of his  allegations against him.  In a

            supplement to  his motion  to reopen,  petitioner claimed  to

            have  notified counsel  by letter and  purported to  attach a

            copy  of the letter,  but failed to  do so.   Even though the

            BIA's  May 6,  1993 order  put  petitioner on  notice of  the

            letter's omission,  petitioner  apparently did  not submit  a

            copy until  over three  months later with  the filing  of his

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third  motion to reopen.   Such piecemeal  presentation, with

            its potential for  an unwarrantable delay of  deportation, is

            what Lozada's "high standard" is aimed at preventing.
                 ________

                 Third,  petitioner refused to state whether he had filed

            disciplinary proceedings  against his  counsel.   He  claimed

            that   "Supreme  Court   Rule   No.   4221,   regarding   the

            confidentiality of  Disciplinary Complaints" barred  him from

            saying whether  a complaint had  been filed.   Petitioner did

            not attach a copy of the rule from which the BIA could make a

            determination   whether   petitioner's   interpretation   was

            warranted.1 

                 In  view of  the motion's  deficiencies,  the BIA  acted

            within its discretion in denying reopening.

                                         III

                 Petitioner asks  that we  hold appellate  proceedings in

            abeyance until the  BIA acts on a third  motion for reopening

            petitioner  filed through  a third  counsel  in August  1993.

            Because  of     1105a's  automatic  stay,  holding  appellate

            proceedings  in  abeyance  would  be  tantamount  to  staying

            deportation  pending  determination   of  petitioner's  third

            motion to reopen. After reviewing the motion and the relevant

____________________

            1.  Petitioner has apparently abandoned his interpretation of
            the Rhode Island rule, for in his third  motion to reopen, he
            indicates  he filed a complaint against first counsel in late
            July,  almost  two months  after  the BIA  denied  the second
            motion  to  reopen.    The  disciplinary  complaint  is  very
            sketchy.

                                         -6-

considerations, see  Berroteran-Melendez v. I.N.S.,  955 F.2d
                            ___  _____________________________

            1251,  1255 (9th  Cir.  1992), we  decline  to stay  judicial

            proceedings.    We note that petitioner has  requested a stay

            of deportation  from the BIA, and we think  the BIA is in the

            best position to assess whether such relief is warranted.

                 The May 6,  1993 order denying reopening is affirmed and

            the I.N.S.'s motion to lift the automatic stay is granted. 

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