151 F. Supp.2d 794, 796-97 (W.D. Tex. 2001). Cf.
United States v. Gonzalez-Roque, 165 F. Supp.2d 577, 581 (S.D.N.Y. 2001)
(alien deprived of due process when he was not informed that an INS
attorney had received his 212(c) application, thus frustrating review).
Deprivation of judicial review can also be established by demonstrating
ineffective assistance of counsel. To prove ineffectiveness of the
attorney a party must show that "counsel's performance was so ineffective
as to have impinged upon the fundamental fairness of the hearing in
violation of the fifth amendment due process clause." Saleh v. United
States Dep't of Justice, 962 F.2d 234, 241 (2d Cir. 1992) (internal
quotes and citations omitted). The party "must allege sufficient facts to
allow this court to infer that competent counsel would have acted
otherwise and must also show that he was prejudiced by his counsel's
performance." Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per
curiam) (internal quotes and citations omitted).
Ineffective assistance of counsel is demonstrated when: an attorney
does not file a 212(c) application if a competent attorney would have
filed such a motion; there is a prima facie showing of eligibility for
relief; and the attorney fails to inform the client that such an
application would not be filed — thus in effect abandoning the
client. Rabiu v. INS, 41 F.3d 879 (2d Cir. 1994). Rabiu involved a
direct, not collateral, attack.
One case distinguished Rabiu from cases in which collateral challenges
are mounted. United States v. Crown, 99 Cr. 1044 (AGS), 2000 U.S. Dist.
LEXIS 4499, at *19-20, (S.D.N.Y. Apr. 10, 2000), aff'd, United States v.
Crown, 00-1702, 2001 U.S. App. LEXIS 13722 (2d Cir. June 18, 2001). The
Crown court emphasized that the relief sought in Rabiu was a remand to an
Immigration Judge to allow the filing of a section 212(c) application,
whereas the relief sought by a collateral challenge is the broad and
conclusive act of dismissal of a criminal complaint.
Crown is distinguishable from the present case. The alien in Crown
actually received a section 212(c) hearing. His application was denied
and his attorney filed a notice of appeal but never filed a brief in
support of the appeal, resulting in dismissal of the appeal. Crown at
*8. Mr. Crown claimed that his counsel was ineffective because of
inadequate preparhtion of witnesses for the section 212(c) hearing,
failure to show Mr. Crown's HIV infection at the hearing, and failure to
file a brief in support of the appeal. Id. at *15. The district court
ultimately concluded that "[t]he fact that defendant was merely
`eligible' for Section 212(c) relief and was denied it after a hearing,
standing alone, is insufficient to find that he was deprived of his right
to judicial review warranting dismissal of the exclusion order." Id. at
*20. The attorney in Crown arguably went further than the attorney in the
instant case in protecting the alien, his client. Nevertheless, Crown
suggests that ineffective assistance of counsel is harder to establish if
the alien moves to collaterally, rather than directly, challenge the
validity of a deportation order. Id. at *19-20.
Both in a direct and collateral attack a party must prove that
prejudice resulted from the deprivation of judicial review. Fares, 978
F.2d at 57 (collateral attack); Rabiu, 41 F.3d at 882-83 (direct
attack). The Rabiu court required an indication that a prima facie
showing could have been made on the alien's behalf at the 212(c)
hearing. 41 F.3d at 882-83, citing Miranda-Lores v. INS, 17 F.3d 84, 85
(5th Cir. 1994). To demonstrate prejudice, "an alien must show that his
proceeding contained errors so fundamental that he might have been
deported in error. . . . The alien needs to prove that he might
been deported had he been able to exercise his right of direct appeal; he
must make some showing that the result might have been different." United
States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002).
Fernandez-Antonia was a case involving a collateral attack. Id. at 157.
The Fernandez-Antonia standard of "some showing that the result might
have been different" applies to the present case.
In determining whether to grant a section 212(c) application, an
Immigration Judge will "balance the adverse factors evidencing an alien's
undesirability as a permanent resident with the social and humane
considerations presented in his behalf." Matter of Marin, 16 I. & N.
Dec. 581, 584 (BIA 1978). The administrative judge will consider positive
factors such as family ties within the United States, length of residence
in the United States, evidence of hardship to the alien and the alien's
family in the event of deportation, employment history, property or
business ties, evidence of good character, and likelihood of positive
contributions to American society. Lovell v. INS, 52 F.3d 458, 461 (2d
Cir. 1995). Adverse factors that will be considered include the nature
and circumstances of the cause for deportation; additional immigration
law violations; the existence, recency, seriousness, and nature of a
criminal record; and other indications of an alien's bad character or
undesirability as a permanent resident. Lovell, 52 F.3d at 461, citing
Marin, 16 I. & N. Dec. at 584-85. More than half of 212(c)
applications have been approved. INS v. St. Cyr, 533 U.S. 289, 296 n. 5
III Application of Law to Facts
The defendant was effectively deprived of the opportunity for
administrative review because of failures, not of the government, but of
his counsel. He was notified, in writing, of the right to review. The
expressed intention of counsel to file a section 212(c) application on
the behalf of the defendant implies that the defendant through his
counsel was aware of the availability of discretionary relief. The
setting by the Immigration Judge of a filing deadline for a section
212(c) application and the requirement that counsel appear was reasonable
and clear; the attorney acknowledged receiving the time requirement. Ex.
D to Government's Response. Counsel indicated that he understood that the
defendant could be deported if the application for section 212(c) relief
was not filed by October 19, and that he was required to personally
appear at the hearing scheduled for November 1. Based on the factors
considered by the Immigration judge, listed in Lovell, supra, there was a
substantial probability that a properly prosecuted section 212(c)
application would have been successful.
The defendant can be characterized as a victim of ineffective
assistance of counsel. This is not a case like Rabiu where the attorney
effectively stopped representing the client. In the present case, after
counsel failed to timely file the section 212(c) application he had
failed his client. His subsequent move to reopen the proceedings and file
an appeal with the Board of Immigration Appeals was mitigatory. Counsel
had failed to take the most elementary step to protect the client
— in practical effect an abandonment.
A competent attorney would not have allowed the initial filing deadline
to pass, even though, in an attempt at repair, such an attorney would
have behaved similarly to Mr. Garzon once the mistake had been made. If
the motion to reopen had been granted, counsel could (and likely would)
have filed a section 212(c) application on
defendant's behalf with a prima facie basis for success.
Even though the defendant was denied the opportunity for judicial
review of a section 212(c) application or any other issue in his
deportation proceedings, he was not altogether denied the "opportunity"
for judicial review. He was never literally abandoned by his attorney.
The motion to reopen was considered by the Immigration Judge and
ultimately appealed to the Board of Immigration Appeals.
The case is at the borderline of a due process violation. Yet,
ultimately, the court is driven to the conclusion that, in the language
of the Saleh case. "counsel's performance was so ineffective as to have
impinged upon . . . fundamental fairness." Defendant's counsel deprived
the defendant of the opportunity for judicial review, negating a
fundamentally fair proceeding. Defendant's collateral challenge meets the
requirements of section 1362(d). Exhaustion requirements have been met
because an appeal was blocked by the attorney's lack of skill and
attention to his professional obligations.
In a case at the verge of fundamental unfairness, which could lead to a
serious criminal prosecution and a long prison term, due process should
be interpreted generously to protect the accused. An alien is not
entitled to any less due process protection than a citizen especially in
a proceeding so important as one which could lead to the deyastating
punishment to himself and his family of separation from home and loved
ones by deportation.
IV Continuing Concern about Lack of Due Process Because of Poor Lawyering
The court is troubled by the carelessness or lack of skill of
defendant's counsel. Over the years it has observed a wide variability in
professional capacity in legal representatives of aliens. Improving the
level of representation by granting collateral attacks long after the
event will do little to improve the quality and practice of the
immigration and naturalization bar. Undoubtedly part of the problem is
not the fault of attorneys, but of the realistic situation that the
aliens involved often possess little money, lack language skills, and a
have fear of the government that inhibits a rational defense. Aliens and
their families often wait too long before obtaining counsel. Their lack
of sophistication places them at the mercy of sometimes venal and
unskilled non-legal advisors. Transfer of the alien to a distant venue
vastly complicates counsel's problems.
Currently, to practice immigration and naturalization law, all that an
attorney is required to do is file "a written declaration that he or she
is currently qualified and is authorized to represent the party for whom
he or she appears. . . . Any attorney in good standing may represent
persons before the [Immigration and Naturalization] Service, the
immigration judges or Board [of Immigration Appeals]." 1 Charles Gordon,
Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure
§ 4.02(1)(b) (revised ed. 2002). A more effective approach to fair
process may well be to require special training and examinations leading
to admission to an immigration and naturalization bar for those who wish
to exercise this specialty. Poor representation could then lead to
disbarment. In some instances the use of modern techniques such as
two-way television may reduce the venue problem.
Immigration and naturalization law has grown exceedingly complex in
recent years as Congress tighten's the law against aliens. The court of
appeals for this circuit has characterized the immigration statutes as "a
baffling skein of provisions for the I.N.S. and courts to disentangle,"
akin to "King Minos's labyrinth in ancient
Crete." Lok v. INS, 548 F.2d 37,
38 (2d Cir. 1977). Intricacy is bound to increase post-September 11,
2001. The immigration and naturalization bar — as well as the
courts and administrative agents — must be prepared to rise to
increased challenges to its skills and bona fides if we are to ensure
real due process to aliens.
A more attentive attorney would have had a good probability of saving
the defendant from deportation by taking the most elementary steps to
protect him. The strong policy in favor of finality cannot support denial
of this collateral attack. Even though mens rea existed when the
defendant attempted entry knowing he had been deported, an improper
criminal prosecution cannot be countenanced.
The motion to dismiss is granted.
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