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United States District Court, S.D. New York

September 22, 2004.

JOHN ASHCROFT, et al., Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


The petitioner in this case, who at one time was a permanent resident alien and who had spent much of his life in the United States, was removed from this country, apparently in consequence of failings by his former counsel, and in violation of an express undertaking given by the United States Attorney's Office. The question now before the Court is what if anything can be done about it in the context of this habeas corpus proceeding. Facts

  Petitioner was born in 1967 and is a citizen of the Dominican Republic. He was brought here as a child in 1970, lived here almost his entire life, and became a lawful permanent resident of the United States in 1990. On February 26, 2002, he was convicted in New York Supreme Court, Queens County, of criminal possession of a controlled substance in the third degree which, so far as the record discloses, was his only brush with the law.

  A. The Initial Removal Proceedings

  On June 11, 2002, while petitioner was in state custody on the possession conviction, a notice to appear charging him with removability was issued. He appeared before an Immigration Judge ("IJ"), sitting at the Ulster Correctional Facility, on October 28, 2002, at which time he was represented by Mr. Guttlein. Although petitioner conceded his removability, the IJ found that he was eligible for cancellation of removal under Section 240A of the Immigration and Nationality Act (the "Act").*fn1 He directed Mr. Guttlein to file a completed Form EOIR-42A with the Court no later than November 27, 2002 and set December 16, 2002 for the individual hearing.*fn2 There was no ambiguity about the filing requirement. As the IJ later put it, he "informed [Mr. Guttlein], on the record, that the application for relief was due at the court no later than November 27."*fn3 On November 12, 2002, petitioner was released from New York State custody and transferred to INS custody at the Pike County Jail in Pennsylvania. Three days later, the INS moved in the Immigration Court ("IC") to transfer venue from Ulster to York, Pennsylvania. The motion, however, was not ruled upon. Mr. Guttlein inexplicably failed to file the Form 42A in the IC in Ulster County, where petitioner's case still was pending. Accordingly, on December 10, 2002, the IJ issued an order of removal against petitioner after noting Mr. Guttlein's failure. No appeal was taken from that order.*fn4

  On or about December 31, 2002, Mr. Guttlein filed with the IJ a motion to reopen, reconsider and vacate the removal order and to stay removal, arguing that he had failed to file the Form 42A (seeking cancellation of removal) because he had assumed that the motion to transfer venue to York, Pennsylvania, would be granted and that he would file it there.*fn5 The IJ denied the motion on January 22, 2003, noting that he expressly had directed Mr. Guttlein to file the application for cancellation of removal in his court "no later than November 27."*fn6 He found further that counsel's assumption that the Form 42A should be filed in the York IC after transfer of venue was erroneous and, in any case, could not be reconciled with the clear direction that it be filed in the Ulster IC by November 27, 2002.

  On February 3, 2003, petitioner filed a notice of appeal to the Board of Immigration Appeals ("BIA") from the order denying the motion to reopen, reconsider and vacate. On February 20, 2003, the BIA denied petitioner's application for a stay of removal pending appeal, essentially on the ground that he had no likelihood of success on appeal. On April 22, 2003, it dismissed the appeal because Mr. Guttlein failed to file a brief.

  B. The Stay in this Court and Subsequent Events

  1. Initial Proceedings

  On March 20, 2003, petitioner, still represented by Mr. Guttlein, filed in this Court a petition for a writ of habeas corpus. By order to show cause, he sought a stay of deportation [sic] pending determination of the appeal to the BIA. The sole grounds for relief asserted were the contentions that the IC in Ulster County lacked jurisdiction over the petitioner and that the entry of the order of removal in the absence of the petitioner and his counsel violated the Due Process Clause and the Sixth Amendment, this despite the fact that the hearing had been held on October 28, 2002 with both petitioner and Mr. Guttlein present.

  At the hearing on the application for a stay pending appeal to the BIA, it became apparent that there was a substantial question whether petitioner had been deprived of due process in the proceedings before the INS by the ineffective assistance of Mr. Guttlein.*fn7 Accordingly, the Court stayed the order of removal pending the filing by petitioner, on or before April 15, 2003, of:

  (a) an amended petition in this Court setting forth precisely what relief he sought here and the jurisdictional and legal basis therefor; (b) before the IC and/or the BIA, as might be appropriate, an application to reopen the removal proceeding and vacate the order of removal on the ground of ineffective assistance of counsel; and

  (c) before the IC and/or the BIA, as might be appropriate, an application for a stay of removal pending determination of the application referred to in (b).

  The order provided further that, if the requisite filings were timely made, the stay would continue until two days after the IC or the BIA, as the case might be, ruled on the application for a stay pending determination of the relevant application.*fn8

  On April 15, 2003, Mr. Guttlein filed an amended petition in this Court. It asserted the same grounds for relief as its predecessor.

  2. The Appearance of Mr. Chan and the BIA's Action on the Ineffective Assistance Issue

  The emergence of the ineffective assistance of counsel issue created a problem for petitioner and Mr. Guttlein. As Mr. Guttlein knew, BIA case law holds that an application for relief on the ground of ineffective assistance of counsel "should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts."*fn9 If the asserted failure or misconduct of counsel involved "violation of ethical or legal responsibilities," the affidavit "should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if [it does] not, why not."*fn10 Thus, it was clear to Mr. Guttlein that petitioner's case before the BIA and the IC would require, or at least be aided by, the filing of a disciplinary complaint against Mr. Guttlein.

  At this point, Christopher W. Chan, Esq., appeared on behalf of petitioner.*fn11 After obtaining a brief extension, Mr. Chan filed a motion before the BIA to vacate the order of removal on the ground of ineffective assistance of counsel. The motion was perfunctory. It was not accompanied by an affidavit of petitioner, as required by BIA precedent. Rather, Mr. Chan submitted what purported to be a copy of a letter from petitioner's mother to the Departmental Disciplinary Committee of the New York Supreme Court which stated, in its entirety:

"On or about August 26, 2002, I retained the services of Jorge Guttlein to represent my son in removal proceedings. As set forth in Judge Miller's [i.e., the IJ's] decision, Mr. Guttlein failed to file an application for cancellation of removal on time. As a result, my son is facing imminent deportation."
  On May 23, 2004, the BIA vacated its April 22, 2003 order dismissing the appeal from the IC's denial of the motion to reopen in order to address the merits of petitioner's ineffective assistance motion. After first noting that petitioner's counsel was aware of the specific requirements for perfecting an ineffective assistance of counsel claim, it went on to reject the claim:


"The motion is not supported by an affidavit from the respondent detailing the terms of his agreement with his former counsel, nor is there a copy of a complaint filed by the respondent with the appropriate disciplinary authorities or an explanation for its absence. The letter and affidavit signed by the respondent's mother do not fulfill these requirements since the respondent is a thirty-five-year-old adult, and she is neither his guardian nor a proper party to these proceedings. In short, we have nothing in this record from the respondent himself with respect to his position on the ineffective assistance of counsel claim."*fn12
3. Petitioner's Removal from the United States
  On June 20, 2004, the parties again appeared before this Court. It first became apparent that Mr. Chan had not been retained independently by petitioner. His professional efforts in fact were a favor to Mr. Guttlein.


"THE COURT: I happened to notice, in reviewing the file, that Mr. Chan's address is the same as yours, Mr. Guttlein, including the suite number of his office.
"MR. GUTTLEIN: That's correct.
"THE COURT: What's the relationship?
"MR. GUTTLEIN: He's oftentimes, Judge, does of-counsel for us, and I did ask him as a favor to in fact file this motion and counsel the family to file a complaint against me."*fn13
The Court then observed that it was arguable that Mr. Chan might have been laboring under a conflict of interest between his relationship with Mr. Guttlein, who referred legal work to and shared office space with him, and his duty to the petitioner.*fn14 It raised the question whether it should have petitioner produced in court to allow him to be heard on the issue of his continued representation by Messrs. Guttlein and Chan and to inquire into whether counsel should be appointed by the Court, assuming petitioner were financially eligible for such an appointment.*fn15 It ultimately offered to proceed by having the government provide petitioner with an appropriate notice and the relevant court transcripts and to give him an opportunity to be heard in writing.*fn16 Mindful of the fact that the stay had expired, it inquired whether the Court "had the government's undertaking that he won't be removed or deported before the next court appearance."*fn17 The Assistant United States Attorney explicitly gave that undertaking.*fn18 Accordingly, the Court set the matter down for July 28, 2003.

  In early July 2003, Mr. Guttlein provided the Court with a copy of a letter, purportedly signed by petitioner on June 24, 2003, which purported to "waive all my rights and [requested] the INS to effectuate my removal as soon as possible." On July 15, 2003, the government informed the Court that federal authorities had removed petitioner to the Dominican Republic on July 9, 2003 "without notice to or the knowledge of" the United States Attorney's Office.

  In these circumstances, the Court directed the United States Attorney's Office to communicate with petitioner in the Dominican Republic to ascertain whether he wished to continue litigating his petition and, if so, whether he wished to continue Mr. Guttlein as his attorney. The government pointed out to him that if the Court were to find that the removal order was entered incorrectly and grant the petition, the government would restore the status quo ante — it would bring petitioner back to the United States and return him to the custody of immigration authorities, there to abide the determination of his application for cancellation of removal.*fn19 Petitioner responded that he wished to continue the litigation and to be represented by Mr. Guttlein.*fn20

  Counsel next appeared before the Court on October 3, 2003 at which time the government took the position that Mr. Guttlein's continued representation of the petitioner raised a conflict of interest issue because he would have to argue that his own representation of petitioner before the immigration authorities had been ineffective.*fn21 After first hearing from Mr. Guttlein, the Court concluded that the conflict of interest required his disqualification and appointed counsel on his behalf.*fn22 The matter now is before the Court after briefing and argument.


  As the government contends, there are two fundamental issues now before the Court. The first is whether the case is moot in light of the petitioner's departure from the country. The second is whether the proceedings before the immigration authorities, in the government's words, "were so shot through with ineffective assistance by Mr. Guttlein and company to require a remand of the proceedings."*fn23 A. Mootness

  Removal does not moot an alien's challenge to a removal order where there are collateral consequences to the alien.*fn24 In this case, the removal order itself is a barrier to reentry the existence of which, the government acknowledges, would support jurisdiction if it stood alone.*fn25 It argues, however, that this removal order has no collateral consequences because petitioner independently is barred from reentry by his state court possession conviction.

  To be sure, an alien convicted of violating "any law" relating to controlled substances is inadmissible.*fn26 But the offense of which petitioner was convicted concededly was not an aggravated felony. He therefore is eligible for cancellation of removal.*fn27 Accordingly, the case is not moot.

  B. Ineffective Assistance

  In Lozada, the BIA noted that the right to relief in immigration proceedings on the basis of ineffective assistance of counsel "is grounded in the fifth amendment guarantee of due process."*fn28 And the standard the BIA applies is analogous to that which governs claims of ineffective assistance of counsel in criminal cases — the "alien must show not merely ineffective assistance of counsel, but assistance which is so ineffective as to have impinged upon the fundamental fairness of the hearing."*fn29 In addition, the alien must establish "that he was prejudiced by his representative's performance."*fn30 These standards are readily satisfied here.

  To begin with, Mr. Guttlein's failure to file the Form EOIR-42A with the IC by November 27, 2002 in accordance with the IJ's specific direction was a gross dereliction. He ignored a direct order by a judge, made in his presence, because he assumed that the INS' change of venue motion would be granted and that he later could file the form in the transferee court. The Court assumes without deciding that his belief that the venue motion would be granted was reasonable. Even on that assumption, however, the failure to comply with the IJ's order was inexplicable and inexcusable, and it obviously prejudiced petitioner's position.

  Even then, all was not lost. The situation could have been salvaged by a proper application to the BIA to reopen. But petitioner was failed at this stage as well.

  Mr. Chan failed petitioner by (1) having the disciplinary complaint against Mr. Guttlein, which was a prerequisite to a motion to reopen before the BIA on the ground of ineffective assistance, made by petitioner's mother rather than petitioner, (2) making the disciplinary complaint so perfunctory as to ensure its rejection both by the disciplinary authorities and the BIA, and (3) submitting a motion to reopen to the BIA which failed, for the foregoing and other reasons, to comply with the BIA's requirements for such motions. As the BIA relied upon these failings in denying the motion, Mr. Chan's grossly ineffective representation led directly to the denial of the application.

  Mr. Guttlein, it must be noted, was grossly ineffective at this stage as well as before the IJ. Knowing that a motion to reopen before the BIA required that petitioner make a complaint concerning Mr. Guttlein to the relevant disciplinary authorities, Mr. Guttlein procured Mr. Chan to do so on petitioner's behalf. But Mr. Chan shared office space with Mr. Guttlein and, more importantly, depended to some degree on Mr. Guttlein and his partner to refer legal work to him. Mr. Guttlein therefore was responsible for the fact that petitioner was represented before the BIA by an attorney who had a blatant conflict — one in which his personal interest in retaining the good will of Mr. Guttlein and his partner was at odds with his duty to petitioner to demonstrate both to the disciplinary authorities and to the BIA that Mr. Guttlein's representation of petitioner had been grossly deficient. This too prejudiced petitioner. One can conclude only that the disciplinary complaint Mr. Chan tendered was perfunctory because he was reluctant to jeopardize Mr. Guttlein.

  Given all of the circumstances, this Court concludes that the representation of petitioner before the IC and the BIA by Messrs. Guttlein and Chan was so grossly deficient as to have deprived petitioner of any reasonable opportunity of pursuing cancellation of removal and thus to have deprived him of due process of law.


  Two additional matters warrant brief mention. A. Subject Matter Jurisdiction

  The government initially challenged subject matter jurisdiction. Given that petitioner was in custody in Pennsylvania when the petition was filed, it argued that the only proper respondent was the Philadelphia District Director of the Bureau of Immigration and Customs Enforcement ("BICE") whereas the named respondents were the Attorney General, the Bureau of Citizenship and Immigration Services ("BCIS") and the New York and Philadelphia Directors of BCIS.

  As the Supreme Court held in Padilla v. Rumsfeld,*fn31 the proper respondent in a habeas corpus proceeding ordinarily is the petitioner's physical custodian. Nevertheless, the question whether the Attorney General of the United States is a proper respondent in an immigration matter such as this long has been a vexing issue, and the Padilla Court expressly declined to resolve it.*fn32 The question remains open in this Circuit.*fn33 Nevertheless, Judge Buchwald, in a post-Padilla decision, Garcia-Rivas v. Ashcroft,*fn34 held that "the unique role Congress assigned to the Attorney General in immigration proceedings," including the Attorney General's discretionary power to waive exclusion under Section 212(c) of the Immigration and Nationality Act,*fn35 warrants the conclusion that the Attorney General is a proper respondent in a habeas petition filed by an alien awaiting deportation. This Court agrees. Thus, the real question is not one of subject matter jurisdiction but of venue.*fn36

  Improper venue is a waivable defect. While the government initially raised the issue (albeit under the subject matter jurisdiction rubric), it has not pressed the point since petitioner was removed from the United States. Accordingly, any objection to venue has been waived. But the Court need not rely exclusively on the waiver, for venue is proper in this Court in any case.

  As Section 2241 contains no venue provision, "traditional venue considerations apply."*fn37 These include such matters as the location of the material events, the location of records and witnesses, and the convenience of the forum for the litigants.*fn38 In this case all of those factors favor litigation in this District.

  B. Exhaustion

  The government maintained also in its initial submission that petitioner, insofar as he challenged the order of removal, had failed to exhaust his administrative remedies because he had failed to appeal from the order. As it has become reasonably plain that Mr. Guttlein's deficient representation was responsible for that failure, the government wisely has not pressed the point, which the Court deems abandoned and in any case without merit. IV

  For the foregoing reasons, the writ is granted. The order of removal and the subsequent orders of the IJ and the BIA are vacated. Respondents shall afford petitioner the opportunity to file an application for cancellation of removal. If such an application is filed, they shall proceed to decide it on its merits. This decision disposes of all pending motions in this case, and the Clerk is directed to make the appropriate docket entries.


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