United States District Court, N.D. California
April 11, 2005.
JESUS QUINTERO-ORTEGA and HILDA ALBERTO-QUINTERO, Petitioners,
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
MEMORANDUM & ORDER
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.
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
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
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.
IT IS SO ORDERED.