Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A088-232-404) Immigration Judge Alberto J. Riefkohl
Submitted Pursuant to Third Circuit LAR 34.1(a) October 5, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
Pedro Jesus Calla-Collado petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ") ordering his removal. For the following reasons, we will deny the petition for review.
Calla-Collado, a native and citizen of Peru, entered the United States in 2005. In September 2007, he was arrested for driving while intoxicated.*fn2 Calla-Collado was unlicensed. When he arrived at police headquarters, police officers contacted Immigration and Customs Enforcement ("ICE"), and were informed that Calla-Collado was an undocumented alien. Calla-Collado was then detained in New Jersey.
Calla-Collado was placed in removal proceedings, with charges under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. He was subsequently transferred to Oakdale, Louisiana. An IJ hearing was held in Louisiana on November 19, 2007, in which Calla-Collado, through his attorney, admitted to the allegations in the Notice to Appear ("NTA").*fn3 He also requested a change of venue to New Jersey, which was granted.
After venue was changed to New Jersey, CallaCollado retained new counsel and filed a motion to withdraw the pleadings and a motion for an evidentiary hearing. The IJ did not rule on Calla-Collado‟s motions. The IJ found that Calla-Collado‟s admission waived the issues raised in his motions. Because Calla-Collado did not apply for any additional relief, the IJ ordered him removed from the United States to Peru. The BIA dismissed Calla-Collado‟s appeal, finding that: (1) he failed to establish that his previous concession to removability should be suppressed; (2) his rights were not violated when he was transferred to Louisiana; and (3) that evidence of his alienage was not suppressible under the Fourth Amendment. Calla-Collado filed a petition for review of the BIA‟s final order of removal.
We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a)(1). Where the BIA issues a decision on the merits, we review only the BIA‟s decision. However, we will look to the IJ‟s analysis to the extent that the BIA deferred to or adopted it. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We "will uphold the findings of the BIA to the extent that they are supported by reasonable, substantial[,] and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did." Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). Our review of legal conclusions is de novo, subject to principles of deference. Wu v. Attorney Gen. of the U.S., 571 F.3d 314, 317 (3d Cir. 2009).
Calla-Collado essentially raises three arguments in his fifty-five-page brief.*fn4 First, Calla-Collado alleges ineffective assistance of counsel.*fn5 He asserts that counsel conceded the allegations in the NTA without his consent and that the admission is therefore invalid. An alien is generally bound by the actions of his attorney. See Green v. Immigration & Naturalization Serv., 46 F.3d 313, 317 (3d Cir. 1995); Velasquez, 19 I. & N. Dec. at 382. "[W]hen an admission is made as a tactical decision by an attorney in a deportation proceeding, the admission is binding on [the] alien client and may be relied upon as evidence of deportability." Velasquez, 19 I. & N. Dec. at 382. Further, a claim of ineffective assistance of counsel requires that an alien demonstrate prejudice. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). "For an alien to demonstrate that he suffered prejudice due to his counsel‟s unprofessional errors, he must show that there was a "reasonable likelihood that the result would have been different if the error[s] . . . had not occurred.‟" Rranci v. Attorney Gen. of the U.S., 540 F.3d 165, 175-76 (3d Cir. 2008) (alteration in original) (quoting Fadiga v. Attorney Gen. of the U.S., 488 F.3d 142, 159 (3d Cir. 2007)).
The admission Calla-Collado‟s attorney made on his behalf was binding and did not prejudice Calla-Collado. Calla-Collado stated that he and his attorney discussed changing the venue of the deportation proceeding to New Jersey. Although he alleges not to have specifically authorized his attorney to admit the allegations in the NTA, Calla-Collado acknowledged that the concession may have been a tactical decision by his attorney to obtain the desired change of venue, which was corroborated by the attorney‟s own statement to that effect. As in Velasquez, counsel "may have concluded that by conceding deportability he would relieve the [Immigration and Naturalization] Service of its burden of . . . prov[ing his client‟s] deportability and thereby heighten the chance that the Service would not oppose a change of venue." 19 I. & N. Dec. at 382. Additionally, Calla-Collado has not argued or proffered evidence that the binding admission was untrue or incorrect. If, then, the allegations to which he admitted are accurate, Calla-Collado‟s removal was in a sense a foregone conclusion because he alleges no plausible grounds for relief from deportation. See Fadiga v. Attorney Gen. of the U.S., 488 F.3d 142, 160 (3d Cir. 2007) ("[A] reasonable likelihood of a different outcome requires more than a showing of a plausible ground for relief from deportation." (internal quotation marks and citation omitted)). Consequently, Calla-Collado cannot demonstrate that his counsel‟s purported ineffectiveness affected the result of his deportation proceeding and therefore cannot establish prejudice. Thus, Calla-Collado‟s ineffective assistance of counsel claim fails.
Second, Calla-Collado argues that his motion to withdraw the
pleadings*fn6 should have been granted because the
police officers who contacted ICE allegedly violated New Jersey
Attorney General Directive 2007-3 ("AG Directive 2007-3")*fn7
by questioning him and contacting ICE outside of the booking
process, citing In re Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980),
as support.*fn8 Garcia-Flores holds that deportation
proceedings should be invalidated where an immigration regulation has
been violated and the violation prejudiced interests of the alien that
were protected by the regulation. 17 I. & N. Dec. at 328-29.
only that a State Attorney General Directive was violated, not an
immigration regulation. Therefore, Garcia-Flores does not apply.
Moreover, even assuming that Garcia-Flores applies to AG Directive
2007-3 and that the police violated its terms, Calla-Collado fails to
demonstrate that this alleged violation prejudiced interests of his
that were protected by the directive.*fn9
Third, Calla-Collado argues that his transfer to Louisiana was egregious, thereby violating his constitutional rights. He asserts that the transfer was arbitrary because he had no contacts in Louisiana. As a result, he claims to have been forced to obtain less effective counsel, rendered unable to present evidence crucial to his case, and coerced into admitting his alienage to secure a change of venue. Congress vested the Department of Homeland Security ("DHS") with authority to enforce the nation‟s immigration laws. See 6 U.S.C. § 202. Thus, as a part of DHS, ICE "necessarily has the authority to determine the location of detention of an alien in deportation proceedings . . . and therefore, to transfer aliens from one detention center to another." Gandarillas-Zambrana v. Bd. of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995) (citations omitted); see 8 U.S.C. § 1231(g)(1). An alien is guaranteed the right to counsel and the right to present witnesses ...