The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
This immigration matter is before the Court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and, more specifically, petitioner's motion for a stay of removal pending his appeal from an order of an Immigration Judge to the Board of Immigration Appeals ("BIA") of his motion to reopen his removal proceedings.
Petitioner, an alien, was convicted in New York Supreme Court, Queens County, of criminal possession of a controlled substance in the third degree, an offense of which intent to sell is not necessarily an element. N.Y. PENAL LAW § 220.16 (McKinney 2000). A removal proceeding was commenced against him by the Immigration and Naturalization Service (the "INS") while he was in state custody. Petitioner conceded his removability. On October 2, 2002, an Immigration Judge ("IJ") found him eligible for cancellation of removal. On October 28, 2002 an IJ directed that any application for cancellation be filed on or before November 27, 2002, and set a hearing on any such application for December 16, 2002. Petitioner, it should be noted, was represented by counsel, and his counsel was present when the direction to file the application by November 27, 2002 was made. On November 12, 2002, petitioner was released from New York State custody. As there was an outstanding INS detainer, however, he was transferred to INS custody in Pike County, Pennsylvania, rather than being released. Three days later, the INS moved to transfer venue of the removal proceeding to the Immigration Court ("IC") in York, Pennsylvania. Although the motion was unopposed, it never was acted upon.
At this point petitioner's counsel made what appears to have been an egregious error. Assuming that petitioner's case would be transferred to the York IC, and assuming further that the IC in Ulster County, New York, no longer had jurisdiction over petitioner, he failed to file the application for cancellation of removal.*fn1 On December 10, 2002, the IJ in Ulster County, New York, noted petitioner's failure to file an application for cancellation and issued an order of removal. In what may prove to have been a second egregious error, petitioner's counsel never appealed from that order.
On or about December 31, 2002, petitioner, through counsel, moved before the INS in Ulster County to vacate the order of removal, reopen the proceeding, and for other relief on the ground that the failure to file a timely application for cancellation of removal had been the product of counsel's assumptions that the case would be transferred to York and "that the application for cancellation of removal should be filed with the Court that would ultimately have jurisdiction."*fn2 Pet. Ex. A, Notice of Motion, ¶¶ 9-11. In an order dated January 22, 2003, the IJ denied the motion in all respects, pointing out that (a) counsel had been informed in person that the application for cancellation was to have been filed by November 27, 2002, and (b) there was no basis for the erroneous assumptions offered by counsel for his failure to do so. Pet. Ex. B. Petitioner has appealed that order to the Board of Immigration Appeals ("BIA") and moved for a stay of removal pending appeal. The BIA has denied the application for a stay on the ground that petitioner is unlikely to prevail on appeal. The appeal remains pending.
The present application was brought on by order to show cause issued on March 20, 2003.
At oral argument on March 25, 2003, two things became abundantly clear.
First, there is substantially no merit to the petitioner's motion or, for that matter, his petition, in its present form. He points to no error of law by either the IJ or the BIA. He has little prospect of demonstrating an abuse of discretion by the BIA in denying his application for a stay pending appeal from the order denying his motion to vacate and reopen, inasmuch as he offered neither the IJ nor the BIA any arguably sufficient excuse for his failure to file the application for cancellation of removal.
Second, petitioner stands in danger of removal as a result of what may be serious failures by his attorney. As far as this record discloses, petitioner was eligible to apply for cancellation of removal and, it appears, lost his chance for relief as a result of his attorney's neglect. Were this an ordinary civil case, that would be the end of the matter. But it is not. Although there is no right to appointed counsel in removal or deportation proceedings, the government concedes that aliens who are represented in such matters have a due process right to the effective assistance of counsel, e.g., Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994), although the right perhaps is not as extensive as that in criminal cases.
Here, petitioner's claim, as elaborated upon at oral argument, boils down to this: Petitioner, as the INS determined, was eligible to apply for cancellation of removal. Through an apparently inexcusable error by his privately retained attorney, the application was not timely filed and the right lost. Had the application been filed, petitioner at least might have obtained cancellation of the order. In consequence, petitioner now is in custody as a direct consequence of a deprivation of his Fifth Amendment right to the effective assistance of counsel.
Whether petitioner can establish such a claim remains to be seen. In view of the government's view that his removal from the United States will be irrevocable and moot the claim, however, he is entitled at least to attempt to mount that challenge. While the Court acknowledges that the government has raised some legitimate issues regarding jurisdiction as well as certain procedural matters, some of the alleged defects may be curable by amendment of the petition while the jurisdictional questions require study beyond what has been possible given the expedited nature of the current application. Moreover, petitioner is entitled to an opportunity to respond to those contentions.
As petitioner is threatened with irreparable injury and, it appears at least provisionally, that he may have a significant possibility of success on an application to reopen the removal proceeding and vacate the order of removal on the ground of ineffective assistance of counsel, the status quo should be maintained for a limited period. Accordingly, ...