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United States District Court, N.D. California

April 11, 2005.

JOHN ASHCROFT, Attorney General, and THOMAS RIDGE, Secretary, Department of Homeland Security Respondents.

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.


  I. Habeas Corpus

  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. 2001).

  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).

  II. The INA

  The Immigration and Naturalization Act ("INA") constrains the timing and scope of judicial review of orders of removal. The statute provides:

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 or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders execution of final orders of removal."*fn3 8 U.S.C. § 1252(g).


  I. Subject Matter Jurisdiction

  This court has subject matter jurisdiction to hear the Quinteros' petition for habeas relief. Section 1252(g) foreclosed judicial review of the discretionary decision by the government to execute a removal order issued by an immigration court. See Reno v. Arab-American Anti-Discrimination Comm., 52 U.S. 471, 482 (1999). The section grants courts of appeal exclusive jurisdiction over challenges to the underlying merits of final orders of removal. Maharaj v. Ashcroft, 295 F.3d 963, 965-66 (9th Cir. 2002). However, the Supreme Court has interpreted AEDPA and IIRIRA to preserve district court habeas jurisdiction under 28 U.S.C. section 2241 in cases raising pure questions of law, specifically, where a criminal alien collaterally challenges a final order of deportation. I.N.S. v. St. Cyr, 533 U.S. 289, 314 (2001). In the present action, the Quinteros have sought habeas relief based on alleged violation of their Fifth Amendment due process rights. Therefore, they raise a pure question of law rather than a challenge to the Attorney General's discretionary decision to execute their removal. Though they are not criminal aliens denied direct review of their removal order, a majority of circuits have interpreted the Supreme Court's decision in St. Cyr to hold that district courts retain residual habeas jurisdiction under section 2241 over criminal and non-criminal aliens alike. See Ali v. Ashcroft, 346 F.3d 873, 878-80 (9th Cir. 2003) (upholding a district court's assertion of habeas jurisdiction over the claims of non-criminal aliens); Riley v. I.N.S., 310 F.3d 1253, 1256 (10th Cir. 2002) (holding that 8 U.S.C. section 1252(g) did not strip federal habeas jurisdiction under 28 U.S.C. section 2241 for non-criminal aliens); Liu v. I.N.S., 293 F.3d 36, 37 (2d. Cir. 2002) (holding that section 2241 jurisdiction remains available to non-criminal aliens); Chmakov v. Blackmun, 266 F.3d 210, 216 (3d Cir. 2001) (same).

  II. Exhaustion of Remedies

  As discussed in this court's prior order, habeas review pursuant to section 2241 does not specifically require exhaustion of administrative remedies. See Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). However, as a prudential matter, habeas petitioners must exhaust available administrative remedies. Id. Prudential exhaustion requirements are discretionary, though such discretion is fettered by a preliminary determination of whether the requirements have been satisfied or waived. Id. at 998; McCarthy v. Madigan, 503 U.S. 140, 144 (1992). The government contends that this court should decline to consider petitioners' claims, because the Quinteros have failed to exhaust available administrative remedies with regard to their ineffective assistance of counsel claim.

  Exhaustion in the Quinteros' case would involve filing a motion to reopen their case with the BIA. See Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1123 (9th Cir. 2000). Petitioners have provided no evidence of undue prejudice or predetermination in bringing their claims before the BIA, nor any lack of agency expertise to decide the ineffective assistance of counsel claim. See McCarthy, 503 U.S. at 146-48 (identifying broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion).

  In this court's prior order, however, it did hold that exhaustion in the Quinteros' case would be futile. See Alcarez v. I.N.S., 384 F.3d 1150, 1160 (9th Cir. 2004) (holding that where a petitioner had missed the ninety day filing deadline to reopen a final deportation order, the prudential exhaustion requirement would not apply due to futility). More than ninety days elapsed between the BIA's final order and November 15, 2004, when petitioners filed their writ of habeas corpus before this court. See 8 C.F.R. § 1003.2(c)(2) (requiring that a party file a motion to reopen deportation or exclusion proceedings no later than 90 days after the date on which the final administrative decision was rendered).

  The Alcarez case is in conflict with the Ninth Circuit's equitable tolling rule, brought to this court's attention in respondent's supplemental filing. The rule permits tolling the deadline to file a motion to reopen with the BIA for claims of ineffective assistance of counsel, provided that the petitioners demonstrate that they acted with due diligence. Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir. 2004). See also Iturribarria v. I.N.S., 321 F.3d 889, 897-98 (9th Cir. 2003) (holding that equitable tolling of deadlines on motions to reopen applies to periods during which a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering that deception, fraud, or error); Fajardo v. I.N.S., 300 F.3d 1018, 1020-21 (9th Cir. 2002) (finding that equitable tolling applied to petitioners motion to open where immigration "consultants" retained to pursue petitioner's asylum application failed to file or untimely filed necessary papers and failed to keep petitioner informed of hearing dates). If equitable tolling applies, the ninety-day limitation period for filing motions to reopen does not begin to run until a petitioner discovers his prior counsel's error or fraud, which in most cases will be the first day that the petitioner meets with new counsel. See Iturribarria, 321 F.3d at 899; Fajardo, 300 F.3d at 1022; Singh, 367 F.3d at 1186.

  This court agrees with respondent that the Iturribarria equitable tolling rule represents a closer fit with the present action, which involves the failure to bring a timely motion to reopen on the basis of an ineffective assistance of counsel claim. To determine whether petitioners are entitled to equitable tolling, this court must first find that they were prevented from filing because they remained under the influence of their prior counsel's "deception, fraud, or error," and secondly, that they acted with due diligence in discovering that misconduct. Iturribarria, 321 F.3d at 1185-86.

  The Quinteros have provided evidence to this court suggesting that their former attorneys Gadda and Wong did indeed give them prejudicially erroneous legal advice. Quinteros' Dec., November 6, 2004; Quinteros' Dec., November 20, 2004; Stebley Dec., Exhs. A-N. Petitioners have alleged three grounds for establishing ineffective assistance of counsel. First of all, in January or March of 2001, attorney Gadda gave petitioners patently incorrect information about the effect of their marriage on Hilda Quintero-Ortega's eligibility to pursue an I-130 Petition for an Alien Relative through her United States' citizen sister.*fn4 Based on his improper reading of the statute, Gadda failed to file such a petition prior to April 30, 2001, which would have allowed petitioners to process their visa applications from within the United States pursuant to INA section 245(i).*fn5 Secondly, both Gadda and Wong never asked the Quinteros about their employment, and they failed to explore the possibility of a labor certification application on behalf of Jesus Quintero-Ortega.*fn6 Finally, attorney Wong allegedly failed to inform his clients of their eligibility for voluntary departure by posting a voluntary departure bond rather than facing deportation, and he allegedly gave inaccurate advice regarding the consequences of voluntary departure for their opportunity to appeal. Petitioners contend that the final order of removal issued on November 16, 2004 demonstrates the prejudice to their case resultant from all three acts of alleged misconduct and error.

  An attorney's decision to pursue or withdraw one route of immigrant legalization, thereby foreclosing a superior route, can be grounds for ineffective assistance of counsel. See Saba v. I.N.S., 52 F. Supp. 2d 1117, 1126 (N.D. Cal. 1999) (Larson, J.) (finding ineffective assistance of counsel where, among other acts of poor judgment, an attorney failed to advise petitioners to adjust their status within a reasonable time after a key legal event). Petitioners' allegations thus present a colorable ineffective assistance of counsel claim which should be brought before the BIA for administrative consideration. Ultimately, petitioners will be required to show that they suffered prejudice from Gadda and Wong's actions. See Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir. 2003) (en banc). "To demonstrate prejudice, however, an alien need not show that he or she would necessarily be entitled to relief. He or she must only demonstrate a `plausible' ground for relief." Arreola-Arreola v. Ashcroft, 383 F.3d 956, 962 n. 9 (9th Cir. 2004).

  The second aspect of the Iturribarria equitable tolling rule is that petitioners must have acted with due diligence. Iturribarria, 321 F.3d at 898. The Ninth Circuit has repeatedly tolled the filing requirements where an alien could not learn of their prior attorney's error or fraud until their first meeting with new counsel. See id. (finding that a petitioner could not have known of his attorney's acts of misrepresentation until he reviewed his file with new counsel); Singh, 367 F.3d at 1185-86 (same); Fajardo, 300 F.3d at 1021-22 (same). Beyond this basic premise, "due diligence" has not been further defined by this Circuit. Petitioners filed their petition for habeas review with this court within two to three weeks of their first meeting with their current counsel and immediately after their notice to report for deportation. The court finds that they acted with due diligence.

  Finding that petitioners are entitled to equitable tolling, but have not yet exhausted their administrative remedies, the proper course of action is to remand this case for agency consideration of petitioners' ineffective assistance of counsel claim. The question of whether the petitioners have satisfied the Lozada requirements and can show prejudice from the failings of attorneys Gadda and Wong is properly left to the Board. Under the doctrine of equitable tolling, the Quinteros are entitled to bring a motion to reopen before the BIA.


  For the foregoing reasons, this case is REMANDED to the agency for consideration of petitioners' motion to reopen on the basis of ineffective assistance of counsel.


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