The opinion of the court was delivered by: Martin Jenkins, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Gumercinda La Parra-Gonzalez's ("Petitioner") Petition for Writ of Habeas Corpus. Petitioner seeks a writ based on her claim that her due process rights under the Fifth Amendment to the United States Constitution have been violated because her attorney's ineffective assistance has permanently and completely deprived her of her right to appeal the Board of Immigration Appeals' ("BIA") decision in her case. (Petition For Writ of Habeas Corpus ("Petition") 6:3-6.) Petitioner argues that because her attorney failed to notify her of BIA's decision, she was unable to file a timely petition for review of the BIA's decision with the Ninth Circuit. (Petition 8:6-10.) Because petitioner has failed to show that the ineffective assistance of her counsel was the reason for the loss of her opportunity to appeal, her petition for writ of habeas corpus is DENIED. [ Page 2]
Petitioner is a native and citizen of Guatemala who has lived continuously in the United States since 1991. Petitioner applied for asylum in December 1992 because she feared persecution in Guatemala. After denying petitioner's asylum claim, the INS served her with an Order to Show Cause ("OSC") charging her as deportable for entering the United States without inspection in 1991. Petitioner applied for asylum, withholding of deportation, and voluntary departure in the Immigration Court. (Petition 3:12-19.)
On January 11, 1995, an Immigration Judge denied petitioner's request for asylum and withholding of deportation, and granted her voluntary departure. Petitioner submitted a timely appeal to the BIA. (Petition 3:21-24.) Around May 1995, while her BIA appeal was still pending, petitioner spoke with Melanie Lemus ("Lemus") about her case. (Petition 3:25-26, 4:1.) Lemus told petitioner that she wanted to find out what happened with her appeal, and she had petitioner sign a document which would allow her to see petitioner's immigration record. Lemus assured petitioner that she would handle the appeal, and that she was going to write something in support of the appeal. Lemus submitted a notice of appearance as petitioner's attorney before the Board, a request for an extension of the deadline to file petitioner's opening brief, and a brief in support of petitioner's asylum claim. (Petition 4:3-14.)
On January 3, 2001, the BIA affirmed the Immigration Judge's denial of asylum and withholding of deportation. The Board sent its decision to Lemus and not to petitioner. (Petition 4:18-25.) However, Lemus never notified petitioner that the Board had denied her case or mailed her a copy of the decision. (Petition 5:5-7.) On January 16, 2001, the Board attempted to serve petitioner with its decision by sending it through overnight mail to petitioner's address as reflected in its computer database. (SeeDeclaration of Nancy A. Abbott ("Abbot Decl.") at 2:5.) However, petitioner had moved, and had not informed the Board of her new address.
On February 15, 2001, petitioner went to see Jacquelyn Neuman ("Neuman"), an immigration attorney. Neuman made a phone call about petitioner's appeal and discovered that the BIA had denied the appeal on January 3, 2001. Neuman informed petitioner of this outcome. This was the first time that petitioner had actual notice that her appeal had been denied. By the time that [ Page 3]
petitioner discovered her appeal had been denied, the time period to file an appeal of the BIA's decision with the Ninth Circuit had passed, as had her time to voluntarily depart from the United States. (Petition 5:9-21.)
Petitioner seeks habeas corpus review of her deportation order on the grounds that Lemus was ineffective in failing to inform petitioner that the Board had entered a decision in her case. Petitioner is asking that the deportation be set aside, and for the Board to reissue its decision. This would give plaintiff thirty days to appeal for Ninth Circuit review.
The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996), significantly restricted the availability of judicial review of immigration decisions regarding the deportation of aliens. However, it did not modify or amend the general federal habeas statute, which still allows for review of both statutory and constitutional questions. Flores-Miramontes v. INS, 212 F.3d 1133, 1143 (9th Cir. 2000). The general statute, 28 United States Code Section 2241(c)(3), provides for habeas relief for those persons who are "in custody in violation of the Constitution or laws of treatises of the United States." Jurisdiction to consider habeas petitions has been extended to individuals who are subject to a final deportation order but who are not in custody, on bond, or on parole. See Williams v. INS, 795 F.2d 738, 745 (9th Cir. 1986). Arguments that a petitioner has been subject to ineffective assistance of counsel in immigration proceedings and has suffered prejudice because of this implicate the Fifth Amendment's guarantee of Due Process, and thus, are embraced by the habeas statute. See Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985).
For an ineffective assistance of counsel claim to succeed, the petitioner must demonstrate that the ineffective assistance of counsel resulted in a proceeding that "was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Id.Due process challenges, such as ineffective assistance claims, require a showing of prejudice to succeed, which is found "when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings." Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir. 1999). In addition, there are a number of procedural requirements that the petitioner must fulfill for an ineffective assistance claim to move forward: 1) [ Page 4]
petitioner must submit an affidavit detailing the agreement between herself and counsel with respect to the duties to be undertaken on her behalf, and what counsel did or did not do pursuant to that agreement; 2) petitioner must inform former counsel of the allegations made against him and must give counsel the opportunity to respond; and 3) if counsel's handling of the case allegedly involved a violation of ethical or legal responsibilities, petitioner must indicate whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not. ...