Vallejo v. INS

• Court: Court of Appeals for the First Circuit
• Decided: November 2, 1999
• Docket: 99-1211
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit

                     _______________________

  

No. 99-1211



                      JAVIER BERNAL-VALLEJO,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,

                                

                           Respondent.

                     

                       ____________________

                                 

             PETITION FOR REVIEW OF AN ORDER OF THE

                                

                  BOARD OF IMMIGRATION APPEALS

                       ____________________

                                

                             Before

                                

                     Torruella, Chief Judge,

                 Bownes, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                      ____________________

  

  James Hayes on brief for petitioner.

  Nancy E. Friedman, Attorney, Office of Immigration Litigation,

David W. Ogden, Acting Assistant Attorney General, and Richard M.

Evans, Assistant Director, on brief for respondent.



                      ____________________

                                

                        November 2, 1999

                       ____________________    LYNCH, Circuit Judge.  Javier Bernal-Vallejo ("Bernal")

has been ordered deported and petitions for judicial review of that

order.  Whether this court has jurisdiction over his petition is a

matter affected by one provision of the transitional rules of the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (1996)

(IIRIRA).  That provision, IIRIRA  309(c)(4)(E), says that "there

shall be no appeal of any discretionary decision under

section . . . 244 [and other enumerated sections of the Immigration

and Nationality Act]."  

    We hold that whether  309(c)(4)(E) precludes

jurisdiction depends on the precise grounds upon which the decision

of the Board of Immigration Appeals rests and the precise nature of

the claims made in the petition.  That is, in general terms,

 309(c)(4)(E) precludes the exercise of jurisdiction only where:

(1) the agency decision as to which review is sought is a "decision

under" one of the enumerated sections, and (2) the agency decision

rests on a ground that is committed to agency discretion. 

Conversely,  309(c)(4)(E) does not preclude the exercise of

jurisdiction where the decision is not a "decision under" an

enumerated section or where the ground on which the decision rests

is not one committed to agency discretion.  Some components of

decisions made under the enumerated sections are not committed to

agency discretion but are instead determinations of objective

facts.  Where the decision rests on these latter grounds, review is

not precluded by  309(c)(4)(E).  We reject the Immigration and

Naturalization Service's position that any decision related to a

final order under one of the enumerated sections is within the

scope of  309(c)(4)(E)'s prohibition of judicial review.  Even if

this section does not preclude review, though, other doctrines may.

    In Bernal's case, we conclude that  309(c)(4)(E)

precludes jurisdiction over his claim that the BIA erred in finding

under the Immigration and Naturalization Act  244, 8 U.S.C.  1254

(repealed 1996), that he had not demonstrated extreme hardship, a

qualification for a suspension of deportation.  We further conclude

that the section does not preclude jurisdiction over his

constitutional due process argument, but that he has not exhausted

his administrative remedies as to that argument.  We dismiss the

petition.

                               I

    Bernal is thirty-seven years old, single, and a citizen

of Colombia.  He studied chemical engineering in Colombia and his

family still resides there.  He entered this country without

inspection in April 1986, his earlier application for a student

visa having been denied.  At some point after entry he bought a

false social security card.  In 1989 he attempted to obtain a green

card fraudulently.  With the help of an intermediary (to whom he

paid $2500), he and others attempted to pass themselves off as

agricultural workers in Florida.  The scheme unraveled when the

group went to the INS office for interviews and the officers

concluded after the first two interviews that these people were not

agricultural workers.  By the time the agents got to Bernal, later

in line, they believed there was a fraudulent scheme, so informed

Bernal, and asked him to cooperate.  Bernal did cooperate with the

government; however, at Bernal's later deportation hearing, the INS

judge commented that Bernal would have gone through with the fraud

if it had not been caught prior to his interview.  In August 1990

he received employment authorization from the INS good for one

year.  After the authorization expired, he began working as a

travel agent in Boston, stating untruthfully on his job application

form that he was a U.S. citizen. 

    Deportation proceedings commenced with an Order to Show

Cause on September 18, 1995, more than four years ago.  Bernal

conceded deportability.  On October 9, 1996, an Immigration Judge 

found Bernal deportable, denied his application for suspension from

deportation, but granted his request for voluntary departure.  He

appealed, and the BIA issued a decision on January 25, 1999,

dismissing his appeal.  In order to establish eligibility for

suspension of deportation, an alien must meet three statutory

requirements.  See INA  244.  The applicant must have been

physically present in the United States for a continuous period of

at least seven years.  See id.  244(a)(1).  Once that is

established, the applicant must show that he is a person of good

moral character and was so throughout the seven years.  See id. 

Finally, the applicant must show that deportation would be an

extreme hardship to himself or a parent, spouse, or child who is a 

U.S. citizen or lawful permanent resident.  See id.  Once the three

eligibility criteria have been met, relief is available at the

Attorney General's discretion, see id.  244(a), with the applicant

bearing the burden of showing that he warrants relief.  See

Ramirez-Durazo v. INS, 794 F.2d 491, 497 (9th Cir. 1986) (stating

that the alien bears the burden of demonstrating that he merits the

favorable exercise of discretion to suspend deportation); see also

Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990) (noting that

the alien "bears the burden of proving eligibility for asylum and

for withholding of deportation").

    The IJ in this instance did not base her decision on the

objective factual determinations of whether there had been seven

years of residence or whether Bernal had a lawful resident parent,

spouse, or child for whom his deportation might cause hardship.  It

was undisputed that Bernal had been in the United States for seven

years and that he had no such relatives.  Indeed, the IJ found that

he was not barred by the good moral character requirement.  Her

decision turned on her judgment that he had not established extreme

hardship and that even if he had, it would be a "very close call"

whether discretion should be exercised to suspend deportation.  The

BIA affirmed on the ground that Bernal had not shown extreme

hardship within the meaning of INA  244(a)(1).

                               II

    The arguments on appeal focus on whether  309(c)(4)(E)

precludes jurisdiction.  Before reaching this question, there is a

preliminary question of the source of any jurisdiction, even were

 309(c)(4)(E) preclusion not to apply.  See Goncalves v. Reno, 144

F.3d 110, 113 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140

(1999).  Jurisdiction here arises under INA  106(a), 8 U.S.C.

 1105a(a), as amended by IIRIRA.  The parties agree that this

case is governed by the IIRIRA transitional rules because Bernal

was placed in deportation proceedings before April 1, 1997, and the

final order of deportation was issued after October 31, 1996.  The

INS agrees that this court has jurisdiction under 8 U.S.C.

 1105a(a) of this timely filed petition for review unless IIRIRA

 309(c)(4)(E) precludes review.  The exact basis for the denial of

suspension of deportation and the nature of the challenge to that

denial are important to the issue of whether  309(c)(4)(E)

precludes jurisdiction.  



     A.  Challenge Based on Extreme Hardship Determination

    There is no dispute that the first criteria under

 309(c)(4)(E) is met: the decision from which Bernal appeals is a

"decision under" one of the sections enumerated in  309(c)(4)(E),

specifically,  244.  See Stewart v. INS, 181 F.3d 587, 594 (4th

Cir. 1999); see also Reno v. American-Arab Anti-Discrimination

Comm., 119 S. Ct. 936, 943 (1999) (stating that jurisdictional

restrictions in 8 U.S.C.  1252(g) apply only to "three discrete

actions the Attorney General may take: her decision or action to

commence proceedings, adjudicate cases, or execute removal

orders.") (internal quotation marks omitted).  

    We turn to the second criteria: whether the decision

turns on a matter committed to agency discretion.  The INS argues

broadly that any order denying discretionary motions seeking the

underlying relief identified in  309(c)(4)(E), such as adjustment

of status or suspension of deportation under INA  244, is within

the jurisdictional prohibition of the section.  We disagree and

think the statute requires a more nuanced interpretation.  

    Section 309(c)(4)(E) does not bar all appeals from final

orders in the types of cases described by the referenced statutory

sections, but only bars appeals of "discretionary" decisions made

under those sections.  This language contrasts with IIRIRA

 309(c)(4)(G), which does preclude "appeals" in cases of aliens

who are inadmissible or deportable because they committed certain

felonies.  Compare id.  309(c)(4)(E) ("[T]here shall be no appeal

of any discretionary decision under [various sections of the

INA] . . . ."), with id.  309(c)(4)(G) ("[T]here shall be no

appeal permitted in the case of an alien who is inadmissable or

deportable by reason of having committed [certain criminal

offenses] . . . ."), and Ruckbi v. INS, 159 F.3d 18, 21 (1st Cir.

1998) (discussing absolute bar to any review by the courts of

appeals in cases falling under  309(c)(4)(G)).  The question then

becomes one of what is meant by the term "discretionary decision." 

It is clear that some aspects of a decision by the BIA as to

whether suspension of deportation should be granted require

objective factual determinations and that Congress gave the agency

no discretion as to these determinations, while other aspects of

the decision are discretionary.

    One non-discretionary aspect of the  244 determination

is whether the minimum residency period has been met.  We agree

with Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir. 1997), which

held that review of a determination regarding the minimum residency

period requirement is not precluded by  309(c)(4)(E).  As Kalaw

points out, the determination of whether the seven year continuous

presence requirement has been met is subject to legal standards

that guide the inquiry.  See id. at 1151; see also Rosenberg v.

Fleuti, 374 U.S. 449, 460-63 (1963) (describing factors to consider

in determining whether presence in the United States has been

continuous).  Further, this court has viewed such determinations as

factual, subject to review under the substantial evidence standard

rather than the abuse of discretion standard.  See Meguenine v.

INS, 139 F.3d 25, 27 (1st Cir. 1998) (reviewing BIA's determination

that alien was ineligible for asylum and withholding of deportation

under "substantial evidence" standard).

    We have already noted one other example of such an

objective criteria set by the Congress that is not committed to

agency discretion.  If the denial of suspension of deportation is

based on an INS determination that a spouse is not a citizen, that

determination of objective fact would be subject to judicial

review.  See INA  106(a); see also Goncalves, 144 F.3d at 125

("Analytically, the decision whether an alien is eligible to be

considered for a particular discretionary form of relief is a

statutory question separate from the discretionary component of the

administrative decision whether to grant relief.").

    The good moral character determination, the second

eligibility factor, may involve either a non-discretionary question

of fact or a discretionary determination.  That is because a

finding of lack of good moral character is required, under 8 U.S.C.

 1101(f), for aliens belonging to certain per se categories.  For

example, those convicted of aggravated felonies are per se

considered to lack good moral character.  See id.  1101(f)(8). 

The BIA may not grant suspension of deportation or voluntary

departure to someone within these per se categories, and so the

agency lacks discretion.  Thus, if a BIA decision turned on a

dispute about whether the applicant fit into one of the per se

categories,  309(c)(4)(E) would not bar this court's review.  If,

however, the determination of lack of good moral character was not

based on the per se categories, then judicial review would be

barred, for that determination would be a discretionary one.

    Here, the denial of Bernal's application was based on a

determination that he would not suffer extreme hardship if

deported, the third eligibility requirement for suspension of

deportation.  This raises the question of whether the "extreme

hardship" determination is a discretionary decision barred from

judicial review by  309(c)(4)(E).  We hold that it is, and, thus,

that we have no jurisdiction over Bernal's claim, on that ground,

that the INS erred in denying him suspension of deportation.  We

join the Fifth and Ninth Circuits in so holding.  See Moosa v. INS,

171 F.3d 994, 1012-13 (5th Cir. 1999) (determining that the extreme

hardship determination is discretionary and unreviewable under

IIRIRA  309(c)(4)(E)); Kalaw, 133 F.3d at 1152 (same).  This is

consistent with pre-IIRIRA law that had recognized that extreme

hardship determinations were within the discretion of the BIA.  See 

INS v. Jong Ha Wang, 450 U.S. 139, 144 & n.5 (1981) ("[The]

Attorney General['s] . . . construction and application of [the

extreme hardship] standard should not be overturned by a reviewing

court simply because it may prefer another interpretation of the

statute.");  Gebremichael v. INS, 10 F.3d 28, 40 (1st Cir. 1993)

(noting that the INS has "considerable discretion" in defining

extreme hardship and reviewing the extreme hardship determination

for abuse of discretion); Antoine-Dorcelli v. INS, 703 F.2d 19, 21

(1st Cir. 1983) ("The determination of 'extreme hardship' is

committed to the sound discretion of the Attorney General.").

  B. Constitutional Claims

    Bernal makes additional claims, clothed in constitutional

garb.  The first is an argument that Bernal's Ninth Amendment

"natural rights" were violated by the failure of the IJ to sua

sponte consider whether Bernal, who is gay, would face extreme

hardship because of persecution of gay men in Colombia or was

entitled to asylum as a member of a persecuted social group.  See,

e.g., In re Toboso-Alfonso, 13 Immigr. Rep. (MB) B1-29, at B1-30,

-31 (B.I.A. 1990).  This claim presents no substantial

constitutional question and is nothing more than a reframed attack

on the discretionary extreme hardship determination over which this

court has no jurisdiction.

    More significantly, Bernal argues that his due process

rights were violated because his former counsel was so ineffective

that Bernal did not obtain a fair hearing.  No Sixth Amendment

right to counsel is involved in deportation proceedings because

they are civil and not criminal; nonetheless, this court has

recognized that there is a due process violation if the proceeding

was so fundamentally unfair that the alien was prevented from

reasonably presenting his case.  See Lozada v. INS, 857 F.2d 10, 13

(1st Cir. 1988).  Other circuits have agreed.  See, e.g., Mustata

v. U.S. Dep't of Justice, 179 F.3d 1017, 1019-20 (6th Cir. 1999)

(discussing jurisdiction to review alien's due process claim based

on ineffective assistance); Castaneda-Suarez v. INS, 993 F.2d 142,

144 (7th Cir. 1993) (recognizing alien's Fifth Amendment right to

due process in deportation proceedings and stating that ineffective

counsel can result in denial of this right); Esposito v. INS, 987

F.2d 108, 111-12 (2d Cir. 1993) (discussing elements alien must

establish in asserting ineffective assistance claim); Roque-

Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985) (discussing

exhaustion requirement where alien asserts due process claim based

upon ineffective assistance).  Leaving aside the question of

whether prejudice can be presumed in certain fact settings, cf.

United States v. Loaisiga, 104 F.3d 484, 487-88 (1st Cir. 1997)

(noting possibility that a denial of counsel in the immigration

context, in some circumstances, might be so flagrant as to allow

for presumption of prejudice), the applicant claiming a denial of

due process must generally show prejudice, see In re Lozada, 6

Immigr. Rep. (MB) B1-31, at B1-33 (B.I.A. 1988).

    We hold that  309(c)(4)(E) does not remove jurisdiction

to review Bernal's claim of ineffective assistance of counsel

amounting to a due process violation.  This due process argument

does not involve a matter that Congress committed to agency

discretion.  Accord Antonio-Cruz v. INS, 147 F.3d 1129, 1130-31

(9th Cir. 1998) ( 309(c)(4)(E) does not preclude review of a due

process claim).

    Review is nonetheless precluded here by another doctrine:

exhaustion of administrative remedies.  Naturally enough, Bernal

did not raise the ineffective assistance claim before the BIA;

indeed, it is his counsel's actions before the IJ and BIA that give

rise to the claim.  Usually issues not raised before the BIA may

not be raised for the first time on a petition for review.  See 8

U.S.C.  1105a(c); Ravindran v. INS, 976 F.2d 754, 761 (1st Cir.

1992) ("Issues not raised before the Board may not be raised for

the first time upon judicial review of the Board's decisions."). 

This general rule is subject to the caveat that the BIA must have

the power to address the matter as to which exhaustion is claimed. 

There are some claims of denial of due process or deprivation of

constitutional rights that are exempt from this exhaustion

requirement because the BIA has no power to address them.  See id.

at 762.  This case is not one of them.

    The BIA has procedures to hear ineffective assistance of

counsel claims through a motion to reopen under 8 C.F.R.  3.2(c). 

Mindful that such claims may be frivolous and brought as a device

to delay deportation, the BIA uses the criteria set forth in In re

Lozada, 6 Immigr. Rep. at B1-33, -34, as a screening device and

does not generally consider the merits of such claims until the

alien has met certain threshold requirements.  See id.; In re

Rivera-Claros, 17 Immigr. Rep. (MB) B1-1, at B1-3, -4 (B.I.A.

1996).  Bernal informs us that he has filed such a motion to

reopen.   The agency determination of that motion to reopen is not

before us (and apparently has not yet taken place); what is before

us is an agency determination that does not include the ineffective

assistance claim.  We decline to review the ineffective assistance

claim because Bernal has failed to exhaust his administrative

remedies. 

    One other possible resolution is noted.  We are aware

that the Eleventh Circuit has held that there is no recognizable

liberty interest protected by due process if the deficient

representation merely prevents the alien from being eligible for

discretionary relief such as suspension of deportation.  See Mejia-

Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999).  The

Eleventh Circuit view is contrary to Lozada, which involved an

alien who conceded deportability because of criminal convictions

but who applied for discretionary relief from deportation under

then INA  212(c), which allowed waiver of deportation, and under

INA  244(e), which permitted voluntary departure in lieu of

deportation.  See Lozada, 857 F.2d at 11.  Here, the INS argues

only the exhaustion point, and, accordingly, there is no occasion

to address this or any arguments about the strength of the

ineffective assistance claim. 

    The petition for review is dismissed and the stay of

deportation is vacated.  So ordered.