The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
On November 15, 2004 petitioners Jesus Quintero-Ortega and
Hilda Alberto-Quintero filed an emergency motion to stay removal
and writ of habeas corpus. They allege that their immigration
removal proceedings before the Executive Office of Immigration
Review, the Board of Immigration Appeals, and the Ninth Circuit
Court of Appeals violated the due process clause of the Fifth
Amendment on the basis of ineffective assistance of counsel. They
allege that they were prejudiced by the failings of their
attorneys to file two visa petitions suitable for their
circumstances and to advise them of the conditions of their
eligibility for voluntary departure. Petitioners assert this
court's jurisdiction under 28 U.S.C. sections 2241 and 1331. Now
before the court are the Quinteros' petition for a writ of habeas
corpus and a stay of deportation. Following a hearing on the
petition and a request for supplemental filings, and having
considered the parties' arguments and submissions, the court
enters the following memorandum and order.
After more than ten years in the United States, in January or
February of 2001, the Quinteros approached attorney Miguel Gadda for assistance with adjustment
of their immigration status. Quinteros' November 6, 2004 Dec., ¶
1. They inquired about the possibility of filing a visa petition
through Hilda Alberto-Quintero's sister, a United States citizen,
but Gadda informed petitioners that their marriage barred Hilda
Alberto-Quintero's eligibility for such an application. Id. at
¶ 2. Gadda advised petitioners to file a ten-year hardship
petition instead. Id. Gadda then proceeded to ignore
petitioners' application for approximately one year. Id. at ¶
3. Unbeknownst to the Quinteros at that time, Gadda was ordered
inactive by the California bar in 2001 and eventually disbarred
in 2003.*fn2 See Stebley Dec., Exh. G. In 2002, Gadda's
office referred the Quinteros to attorney Bruce Wong. Id. By
that point a key deadline in April had passed, and Wong advised
the Quinteros against the family-based petition. Id. Neither
attorney ever raised the possibility of a labor certification
petition. Id. at ¶ 2, 3. Such a certification has since been
filed on Jesus Quintero-Ortega's behalf. Stebley Dec., Exh. K.
On or about May 3, 2002, the Immigration and Naturalization
Service commenced removal proceedings under Immigration and
Nationality Act ("INA") section 212(a)(6)(A)(i) against both
petitioners as aliens present in the United States without being
admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). See Daw
Dec., Exh. B, EOIR Oral Decision at 5. A judge of the Executive
Office of Immigration Review ("EOIR") denied the Quinteros'
applications for cancellation of removal, but granted them the
right to voluntary departure. Id.
Petitioners appealed to the Board of Immigration Appeals, which
affirmed the immigration court without opinion on March 9, 2004.
Daw Dec., Exh. D. The EOIR decision below thus became the final
agency determination in the Quintero's case. Id. The Quinteros
allege that attorney Wong told them to hold off posting a $500
bond to preserve their right to voluntary removal, suggesting
that to do so would eliminate their right to appeal. Quinteros'
November 6, 2004 Dec., ¶ 4; November 20, 2004 Dec. ¶¶ 3-4.
Petitioners allege that at their next meeting, Wong only informed
them of procedures for appeal without mentioning their options
for posting a bond, nor of the consequences of failing to
voluntarily depart. November 20, 2004 Dec. ¶ 4. This meeting was
not translated for them. Id. The Quinteros filed a motion to stay removal with the Ninth
Circuit. See Daw Decl., Exh. E. On August 16, 2004, the Ninth
Circuit dismissed the petition sua sponte for lack of
jurisdiction. Id. The temporary stay of removal and voluntary
departure continued in effect until issuance of the mandate,
which occurred on September 8, 2004. Id. Petitioners received
an order of removal from Immigration and Customs Enforcement on
or about October 14, 2004. Stebley Dec., Exh. A. On the eve of
their deportation, November 15, 2004, the Quinteros filed an
emergency motion to stay removal and a petition for writ of
habeas corpus based on ineffective assistance of counsel.
On December 23, 2004, this court granted petitioners leave to
complete their filing with respect to their claim on or before
January 15, 2005 and granted respondents leave to file a response
within fifteen days thereafter. The parties completed their
supplemental submissions in a timely fashion. Petitioners filed
supplemental exhibits that document Jesus Quintero-Ortega's
current employer's labor petition filing on his behalf,
prevailing wage information for Quintero's occupation, a
declaration from petitioners' counsel that Jesus
Quintero-Ortega's former employer did not wish to become involved
in the present action by verifying his willingness to file a
labor certification on Quintero's behalf, the filing of claims
against attorneys Wong and Gadda with the State Bar of
California, and documentation of those attorneys responses or
failures to respond to those filings. Respondents filed a
response to these submissions.
Now for final resolution before the court is the Quinteros'
petition for writ of habeas corpus and stay of removal.
To obtain relief under the general habeas corpus statute, a
petitioner must demonstrate that she "is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). The "in custody" requirement for habeas
jurisdiction covers individuals subject to a final order of
removal. See Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir.
Neither the Antiterrorism and Effective Death Penalty Act
("AEDPA") nor the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA")
repealed general federal habeas corpus jurisdiction under
28 U.S.C. section 2241 to hear challenges to Department of Homeland
Security removal decisions raising pure questions of law. I.N.S.
v. St. Cyr, 533 U.S. 289, 314 (2001).
The Immigration and Naturalization Act ("INA") constrains the
timing and scope of judicial review of orders of removal. The
Judicial review of all questions of law and fact,
including interpretation and application of
constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an
alien from the United States under this chapter shall
be available only in judicial review of a final order
under this section.
8 U.S.C. § 1252(b)(9). It also grants exclusive jurisdiction to
the court of appeals for "any cause or claim by or on behalf of
any alien arising from the decision ...