United States District Court, Middle District of Pennsylvania
September 29, 1999
UNITED STATES OF AMERICA, PLAINTIFF,
NIYI AYENI, DEFENDANT.
The opinion of the court was delivered by: Caldwell, United States District Judge.
Defendant, Niyi Ayeni ("Ayeni"), a native of Nigeria, has been charged
with failing to comply with a final order of removal, in violation of
8 U.S.C. § 1253(a)(1)(A),(B) and(C). Defendant seeks to dismiss the
indictment, contending that he was denied effective assistance of counsel
during the underlying deportation proceeding, and that the deportation
order on which the indictment is based is therefore invalid. The
Government contends that we lack jurisdiction to consider Defendant's
challenge because the deportation order was based on a firearms
conviction and that Defendant cannot show that his attorney's actions
caused him prejudice such that the order should be vacated.
Ayeni entered the United States from Nigeria in 1989 as a permanent
resident alien. In May 1995, he was convicted in Philadelphia,
Pennsylvania, of two criminal offenses; criminal mischief and carrying a
firearm in a public place or street. He was sentenced to one year of
The Immigration and Naturalization Service ("INS") subsequently
commenced deportation proceedings against Ayeni. At a hearing before an
immigration judge ("IJ") in March 1996, Ayeni sought to terminate the
deportation proceedings or, in the alternative, he requested that he be
granted voluntary departure. In a decision issued in November 1996, the
IJ held that evidence of Ayeni's conviction was "clear, convincing, and
unequivocal." Oral Decision & Order of IJ, Nov. 19, 1996, at 2. The
FBI had confirmed through fingerprints that Ayeni was the person
convicted in 1995, and the IJ found that the record of conviction was
conclusive evidence of the firearms offense. The IJ then determined
that, despite the firearms convictions, Ayeni would be permitted to
voluntarily depart the country, and he was granted until January 2,
1997, to leave.
Ayeni appealed the IJ's decision to the Board of Immigration Appeals
("BIA"). However, his attorney never filed a brief in support of the
appeal even though he received an extension of time to do so.
Accordingly, the BIA dismissed the appeal in October 1997 without
addressing the merits, as permitted by 8 C.F.R. § 3.1(d)(1-a)(i)(E).
Defendant claims that he never received notice of the BIA's decision
because his attorney did not inform him of the outcome.*fn1
On June 23, 1999, Defendant was charged in a one-count indictment with
a violation of 8 U.S.C. § 1253(a)(1)(A),(B) and (C) for his failure
to comply with the departure order. Defendant's motion to dismiss the
indictment seeks collateral review of the underlying deportation order
pursuant to 8 U.S.C. § 1252(b)(7). Defendant argues that the order
should be vacated because he was prejudiced by his attorney's failure to
prosecute his appeal and to inform him of the BIA's decision. Vacating the
deportation order would man-date dismissal of the indictment.
As provided in 8 U.S.C. § 1253(a), an alien who is subject to a
final order of removal and who "willfully fails or refuses" to depart or
make application to depart, or "connives or conspires" in order to
prevent such departure, may be fined or imprisoned or both.
8 U.S.C. § 1253(a). Section 1252(b)(7) of the Immigration and
Nationality Act ("INA") allows a defendant charged with a violation of
section 1253(a) to collaterally challenge the validity of the removal
order, "[i]f the validity of an order of removal has not been judicially
decided." 8 U.S.C. § 1252(b)(7). To obtain review a defendant must
file a motion with the court prior to trial on the criminal charge.
The Government contends that despite the availability of collateral
review under section 1252(b)(7), we are nonetheless deprived of
jurisdiction to review the Defendant's deportation order by
8 U.S.C. § 1252(a)(2)(C), which provides:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed a criminal offense covered in
section . . . 1227(a)(2) . . . (C) . . . of this
Section 1227(a)(2)(C) describes various firearms offense, including using
or carrying a firearm, for which an alien may be deported. Because the
departure order entered against Ayeni was based on his firearms offense,
and Defendant now seeks review of that order, section 1252(a)(2)(C)
appears to apply. Defendant argues, however, that we retain jurisdiction
to review the departure order because section 1252(b)(7), which grants
jurisdiction, specifically addresses section 1253(a) proceedings.
Courts that have considered the effect of section 1252(a)(2)(C) on
direct review of deportation orders involving aliens with
criminal convictions have found that the limitation controls over other
INA provisions granting jurisdiction. See Xiong v. INS, 173 F.3d 601 (7th
Cir. 1999); Hall v. United States INS, 167 F.3d 852 (4th Cir. 1999);
Morel v. INS, 144 F.3d 248 (3d Cir. 1998); Okoro v. INS, 125 F.3d 920
(5th Cir. 1997); Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997);
Hincapie-Nieta v. INS, 92 F.3d 27 (2d Cir. 1996); Duldulao v. INS,
90 F.3d 396 (9th Cir. 1996).
On the other hand, the question of whether section 1252(a)(2)(C)
precludes jurisdiction over a collateral attack of a deportation order
brought under section 1252(b)(7) has not yet been addressed. The most
analogous case is United States v. Arce-Hernandez, 163 F.3d 559 (9th
Cir. 1998), in which the Ninth Circuit Court of Appeals considered
whether the Court retained jurisdiction over a collateral attack to a
conviction under 8 U.S.C. § 1326. which penalizes reentry after
deportation. In Arce-Hernandez, an alien, who was found guilty of
illegally reentering the United States following deportation, challenged
his earlier deportation proceeding. Because the alien had previously been
convicted of a firearms offense the government argued that the court
lacked jurisdiction to review the deportation proceeding. The Ninth
Circuit held that the INA provision barring "review by any court" of "any
final order or deportation" was not definite enough to restrict all forms
of judicial review.*fn2 Id. at 562 (quoting AEDPA, § 440(a)). The
court observed that the alien was not seeking direct review of a final
order. Instead, Arce-Hernandez was attempting to collaterally attack his
conviction for illegal reentry on the grounds that he was illegally
The court determined that the statutory language forbidding review of
"final orders of deportation" for aliens with criminal convictions, when
compared with others provisions of the AEDPA, indicated that Congress did
not intend to foreclose all forms of judicial review. Id. at 562 (citing
Chow v. INS, 113 F.3d 659, 668 (7th Cir. 1997), abrogated by LaGuerre v.
Reno, 164 F.3d 1035 (7th Cir. 1998)). For example, with regard to
decisions not to admit aliens into the United States, the INA precludes
judicial review of "any individual determination or . . . any other cause or
claim arising from or relating to the implementation or operation of an
order of removal pursuant to section 1225(b)(1) of this title."
8 U.S.C. § 1252(a)(2)(A)(i); Arce-Hernandez, 163 F.3d at 562 (quoting
AEDPA, § 423(a)). The Ninth Circuit concluded that "[i]f Congress
intended § [1252(a)(2)(C)] to bar collateral review in connection
with an appeal of a criminal conviction for violating 8 U.S.C. § 1326
(illegal reentry), it could have done so by using language like that in
§ 1252(a)(2)(A)(i)]." Arce-Hernandez, 163 F.3d at 563.
Limiting the application of section 1252(a)(2)(C) to direct review of a
final removal order is consistent with the narrow reading that has been
given to other judicial review provisions of the INA. In Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct.
936, 142 L.Ed.2d 940 (1999), the Supreme Court held that section
1252(g), which provides that no court shall have jurisdiction to review
decisions "to commence proceedings, adjudicate cases, or execute removal
orders," bars judicial review of the three
specified actions only, not "the universe of deportation claims." Id. at
___, 119 S.Ct. at 943, 142 L.Ed.2d at 952. In Sandoval v. Reno,
166 F.3d 225 (3d Cir. 1999), the Third Circuit considered the limits on
judicial review contained in the 1996 amendments to the INA, including
the language now codified at 8 U.S.C. § 1252(g), and determined that
the court retained jurisdiction over habeas petitions brought under
28 U.S.C. § 2241 because the amendments did not expressly deprive the
court of habeas jurisdiction. The argument for reading a statute so as to
allow jurisdiction is particularly strong where, as here, the outcome of
an administrative proceeding forms the basis for a criminal charge. See
United States v. Mendoza-Lopez, 481 U.S. 828, 838, 107 S.Ct. 2148, 2155,
95 L.Ed.2d 772, 782-83 (1987) (holding that "where the defects in an
administrative proceeding foreclose judicial review of that proceeding,
an alternative means of obtaining judicial review must be made available
before the administrative order may be used to establish conclusively an
element of a criminal offense"). Accordingly, we conclude that because
section 1252(a)(2)(C) does not explicitly preclude jurisdiction over
collateral attacks to a removal order we retain jurisdiction to consider
Ayeni's challenge to his deportation proceedings.
B. Challenge to the Deportation Proceedings
Defendant claims that his attorney in the deportation proceedings
failed to file a brief with the BIA, resulting in the dismissal of his
appeal, and failed to inform him of the final order of removal that was
entered in October 1997. Defendant alleges that these failures on the
part of his attorney amounted to ineffective assistance of counsel and
that for these reasons the deportation order should be vacated.
Although section 1252(b)(7) authorizes the court to determine the
validity of a removal order entered against a defendant charged under
section 1253(a) with ignoring that order, the statute does not outline
the standards by which the order should be assessed. See
8 U.S.C. § 1252(b)(7). However, to succeed in a collateral attack on
administrative proceedings in the context of an illegal reentry (in
violation of 8 U.S.C. § 1326), a defendant must "demonstrate that:
(1) his due process rights were violated by defects in his underlying
deportation proceeding, and (2) he suffered prejudice as a result of the
defects." United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th
Cir.), cert. denied, ___ U.S.___, 119 S.Ct. 123, 142 L.Ed.2d 99 (1998);
see also United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.
1994) (citing cases); United States v. Clarke, 881 F. Supp. 115, 118
(D.Del. 1995). Because illegally reentering the country and refusing to
comply with a removal order are similar offenses, we conclude that the
same standard should be used to evaluate deportation proceedings that
form the basis of a charge under either section 1326 or section 1253(a).
Defendant argues that the effectiveness of counsel must be measured by
the Strickland standard because he has been criminally charged. See
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). However, the underlying deportation proceeding was a civil, not a
criminal, proceeding. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104
S.Ct. 3479, 3483, 82 L.Ed.2d 778, 785 (1984). Accordingly, an alien in an
immigration proceeding, although entitled to due process, is not
protected by the Sixth Amendment right to counsel. Lozada v. INS,
857 F.2d 10, 13 (1st Cir. 1988).
Ineffective assistance of counsel in a deportation proceeding will
constitute a due process violation "only `if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably
presenting his case.'" Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th
Cir. 1986) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)).
To prevail, the alien must prove "`not merely ineffective assistance
of counsel, but assistance which is so ineffective as to have impinged
upon the fundamental fairness of the hearing in violation of the fifth
amendment due process clause.'" Id. at 500 (quoting Magallanes-Damian v.
INS, 783 F.2d 931, 933 (9th Cir. 1986)). The failure of Defendant's
attorney to file a brief in support of his appeal to the BIA may amount
to a denial of due process. See id. at 500-01 (attorney's failure to
submit brief was a "significant defect"). However, Ayeni must also prove
that he was prejudiced by this failure. This he cannot do. See
Zarate-Martinez, 138 F.3d at 1198.
Moreover, Defendant cannot establish a due process violation in the
failure of his attorney to inform him of the BIAs decision. Because the
BIA notified Defendant's attorney of the summary dismissal of his
appeal, Defendant is considered to have received notice. See
8 C.F.R. § 292.5(a) (providing that when an alien in removal
proceedings is represented, any service shall be made on the attorney).
The fact that the attorney may not have forwarded this information to
Defendant is not a due process violation. Anin v. Reno, 188 F.3d 1273,
1277 (11th Cir. 1999) (citing cases).
To show prejudice resulting from his attorney's failure to file a brief
in support of his appeal, Defendant must indicate "`plausible grounds of
relief which might have been available to him but for the deprivation of
rights.'" Id. (quoting United States v. Leon-Leon, 35 F.3d 1428, 1432
(9th Cir. 1994)). Defendant has not attempted to argue that he might have
obtained a different outcome on appeal, nor does he dispute that he is
deportable because of his firearms conviction. See
8 U.S.C. § 1227(a)(2)(C). Defendant argues only that if he had
received notice of the BIA's decision he might have responded
differently, either by seeking some unspecified relief from the BIA or by
pursuing an immigrant visa petition that was filed on his behalf by his
mother. However, Defendant did obtain some relief from the IJ in that the
IJ exercised his discretion to grant Defendant voluntary departure rather
than ordering deportation. See Clarke, 881 F. Supp. at 118 n. 2 (listing
voluntary departure among the available types of relief from
deportation). And, as stated above, the alleged lack of notice is not a
due process violation. Defendant has not demonstrated that any other
outcome could have resulted had counsel filed a brief and/or notified him
of BIA's decision. Accordingly, Defendant was not prejudiced and his
motion to dismiss will be denied.
We will issue an appropriate order
AND NOW, this 29th day of September, 1999, upon consideration of
Defendant's motion to dismiss the indictment, filed August 9, 1999 (Doc.
No. 14), it is Ordered that the motion is denied.