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QUINTERO-ORTEGA v. ASHCROFT

April 11, 2005.

JESUS QUINTERO-ORTEGA and HILDA ALBERTO-QUINTERO, Petitioners,
v.
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.

BACKGROUND*fn1

  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.

  LEGAL STANDARD

  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 ...

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