Mejia Rodriguez v. Reno

Citation: 178 F.3d 1139Docket: Nos. 98-4426, 98-5878

Court: Court of Appeals for the Eleventh Circuit; June 22, 1999; Federal Appellate Court

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The case involves two appeals by Ernesto Alonso Mejia Rodriguez concerning his deportation proceedings. Mejia filed a motion to reopen these proceedings, which were finalized in 1994, but the Board of Immigration Appeals (BIA) denied this motion. In appeal No. 98-5878, Mejia seeks a review of this denial. While this motion was pending, he also filed a 2241 petition in September 1997 challenging his deportation order from 1994. In appeal No. 98-4426, he appeals the district court's dismissal of his 2241 petition. The court affirms the BIA's denial of Mejia’s motion to reopen and concludes that the issues raised in the 2241 petition are moot, leading to the affirmation of the district court's dismissal.

Mejia, originally from Honduras, entered the U.S. legally as a non-immigrant visitor in 1980. In 1986, he was charged with drug-related offenses, to which he pled no contest under the belief that it would not affect his immigration status and that his record would be sealed upon completing probation. Initially denied, his petition to seal the record was eventually granted after a motion for reconsideration.

Deportation proceedings against him commenced in 1990, originally charging him under two grounds: entry without inspection and a drug-related conviction. The INS later amended these charges to reflect that Mejia was deportable for overstaying his nonimmigrant visa, which had expired in August 1990. Despite the sealing of his criminal record, the immigration judge found him deportable and issued a deportation order on January 24, 1991, allowing him the opportunity to apply for suspension of deportation, which he did on February 21, 1991.

Mejia's motion for suspension of deportation was pretermitted by the INS, which argued that his drug conviction barred him from being considered a person of 'good moral character,' making him ineligible for suspension under INA § 244(a)(2)(i). On August 2, 1991, after a hearing, the immigration judge granted the INS’s motion and ordered Mejia deported to Honduras, admitting sealed records of Mejia’s cocaine conviction solely for evaluating his suspension application. The judge concluded that these records constituted a federal conviction, disqualifying Mejia from good moral character status. Mejia appealed to the BIA, which affirmed the deportation order on January 12, 1994, stating that Mejia was deportable for overstaying his student visa and rejecting his claim that he remained to contest deportation. The BIA upheld the immigration judge's finding of Mejia's conviction despite the records being sealed. 

On April 12, 1995, the INS notified Mejia of his scheduled deportation on May 12, but he failed to appear and absconded. While a fugitive, Mejia petitioned in state court to vacate his drug conviction on May 21, 1997, claiming ineffective counsel regarding immigration consequences. The state court vacated his plea and sentence on August 1, 1997, leading to a nolle prosequi announcement of the charges. On September 23, 1997, the INS detained Mejia for deportation, and three days later, he filed motions to reopen his deportation proceedings, arguing that his prior conviction, which led to the pretermission of his suspension application, had been vacated. The immigration judge reportedly refused to accept his motion.

Mejia sought to reopen his deportation proceedings to file a new application for suspension of deportation but was denied by the Board of Immigration Appeals (BIA) on November 27, 1998, due to his motion being untimely filed in September 1997, violating the 90-day requirement established under 8 C.F.R. § 3.2(c)(2). Following this, Mejia petitioned for review of the BIA's order in court. Concurrently, on September 26, 1997, he filed a habeas corpus petition in the United States District Court for the Southern District of Florida, claiming that his deportation was based on an unconstitutional state conviction later vacated, which he argued affected his federal immigration proceedings and constituted a due process violation. The district court dismissed his petition, citing untimeliness under INA § 106(a)(1) and denied a stay of deportation. Mejia contested this dismissal, noting reliance on a repealed statute, leading to the court granting a stay of deportation but denying the motion for reconsideration. On November 21, 1997, he filed a renewed habeas petition, reiterating his claims and asserting jurisdiction under § 2241. However, on March 12, 1998, the district court dismissed this renewed petition, emphasizing the untimeliness of his motion to reopen and refusing to compel the immigration judge to reconsider it. Mejia then appealed the district court’s decision, prompting a temporary stay of his deportation pending appeal.

Mejia is involved in two appeals: one challenging the district court's dismissal of his 2241 petition and another seeking review of the BIA's order denying his motion to reopen. He argues that a full review of his petition for review would render his appeal of the 2241 petition unnecessary. The court considered all claims in Mejia’s petition for review, particularly his ineffective assistance of counsel claim, and concluded that it need not determine the jurisdictional aspects of the district court’s dismissal of the 2241 petition, ultimately dismissing it as moot.

The court noted a split in circuit courts regarding whether a motion to reopen constitutes a new proceeding or a continuation of prior deportation proceedings, which affects the applicable legal framework. Regardless, the court established that it has jurisdiction over Mejia’s petition for review under both the pre-IIRIRA and post-IIRIRA versions of the INA.

Mejia's motions to reopen were deemed untimely, as he failed to demonstrate that the BIA abused its discretion in denying them or that he suffered a constitutional violation during deportation proceedings. Although Mejia claimed his ineffective assistance of counsel in state court impacted his deportation eligibility, the BIA did not address this argument but rejected his motions due to their late filing. The BIA correctly pointed out that his motions were filed well beyond the 90-day limit set by regulations. Mejia submitted his motion to reopen on September 26, 1997, significantly after the final deportation order in 1994 and past the September 30, 1996 deadline.

Limitations periods are recognized as essential to a well-ordered judicial system, as noted by the Supreme Court in Calderon v. Thompson and Board of Regents v. Tomanio. Although these periods may prevent some meritorious claims from being heard, they are not considered mere technicalities. In the case of D. Mejia, the limitations period in 8 C.F.R. § 3.2(c)(2) does not raise constitutional issues despite Mejia's potential constitutional violation in his deportation proceedings. Mejia argues that his late motion to reopen was due to ineffective assistance of counsel, who misadvised him about the implications of his no-contest plea on his immigration status and pursued a weak legal stance regarding his deportation grounds. He claims that had he received competent representation, he would have acted sooner to vacate his sentence and reopen his deportation case before the limitations period expired, thus alleging a violation of his Fifth Amendment right to due process. However, Mejia's deportation is based on overstaying his student visa, not his drug conviction, which he does not contest. His arguments center on the assumption that without the cocaine conviction, he might have qualified for suspension of deportation, an extraordinary remedy at the discretion of the Attorney General. Therefore, he cannot definitively argue that effective counsel would have altered the outcome regarding his deportation status. The evaluation of whether ineffective assistance in deportation proceedings constitutes a constitutional injury remains unresolved, but the limitations period's application did not infringe upon his right to effective counsel. Courts recognize that deportation proceedings implicate an alien's liberty interests, protected by the Due Process Clause.

The Due Process Clause, rather than the Sixth Amendment, establishes the right to effective counsel in deportation proceedings. To prove ineffective assistance of counsel, an alien must demonstrate that counsel's performance was deficient enough to undermine the hearing's fundamental fairness. This determination requires showing both deficient representation and resulting 'prejudice' or 'substantial prejudice.' Courts have clarified that merely failing to receive discretionary relief does not equate to a deprivation of liberty interests. In Connecticut Board of Pardons v. Dumschat, the Supreme Court ruled that inmates have no constitutionally protected liberty interest in sentence commutation, even with a history of consistent commutations. This principle was applied to immigration cases, such as in Garcia-Mir v. Meese, where Cuban aliens claimed a liberty interest in remaining paroled during immigration proceedings. The court concluded that, without statutory or regulatory constraints on executive discretion, such expectancy does not constitute a protected liberty interest. Similarly, the Seventh and Tenth Circuits have determined that aliens lack protected interests in adjusting immigration status or receiving deferred action, emphasizing that these are discretionary acts devoid of entitlement.

Suspension of deportation is characterized as an 'act of grace' granted at the 'unfettered discretion' of the Attorney General, akin to an executive pardon. Even if an alien meets the eligibility criteria for suspension, they are not entitled to this relief. The Attorney General holds the authority to narrowly interpret what constitutes 'extreme hardship,' and the Supreme Court has reaffirmed this comparison to an executive pardon. Deficient legal representation does not violate an alien's due process rights if it merely results in ineligibility for suspension of deportation, as the chances of receiving such discretionary relief are too speculative for judicial review. An alien has no constitutional right to suspension of deportation, similar to the absence of a right to a pardon for convicted felons. In the case of Mejia, even if his counsel was deficient, he failed to demonstrate that this deficiency caused any actual or substantial prejudice regarding his deportation status or his ability to claim extreme hardship. Thus, Mejia's claim of ineffective counsel does not constitute a due process violation.

Mejia’s petition for review was denied by the Board of Immigration Appeals (BIA) as untimely because it did not allege any constitutional issues related to the BIA's decision. The BIA's final order of deportation has been affirmed, and the appeal from the district court's dismissal of Mejia's 2241 petition is dismissed as moot. Mejia provided affidavits to establish the terms of his plea agreement. Under the law at the time of his deportation proceedings, the Attorney General could grant "suspension of deportation" if specific criteria were met, including continuous physical presence in the U.S. and demonstrating good moral character, along with showing that deportation would cause exceptional hardship to certain family members. Mejia did not demonstrate such hardship or claim any qualifying family ties. Although he arguably met the first three criteria for suspension, the absence of a qualifying hardship claim meant he could not have obtained suspension. The BIA has discretion in interpreting the hardship requirement narrowly. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) later replaced suspension of deportation with "cancellation of removal." Mejia’s ineffective-assistance of counsel argument was not raised before the BIA, which may bar him from asserting it now; however, other courts allow such claims to be raised in petitions for review. The BIA did not find sufficient grounds to reopen Mejia’s case, noting his failure to challenge his deportation order initially and his absence from 1994 to 1997. Additionally, he had representation in both his criminal and deportation proceedings. In immigration terms, "parole" refers to allowing aliens to enter the U.S. while their immigration cases are ongoing.

The Second and Fifth Circuits have acknowledged potential claims of ineffective assistance of counsel related to an attorney's failure to apply for a waiver of deportation under INA § 212(c), but these cases (Rabiu v. INS and Miranda-Lores v. INS) do not support Mejia's claims for several reasons. Firstly, neither case addresses how the potential for discretionary relief connects to constitutionally protected liberty interests. Secondly, both cases pertain specifically to lawful permanent residents, who have a greater expectancy of remaining in the U.S. than non-residents like Mejia. Thirdly, under the standards established in Rabiu and Miranda-Lores, Mejia would need to demonstrate a prima facie eligibility for suspension of deportation and a strong showing of substantial prejudice, which he has failed to do. To qualify for suspension, he must show 'exceptional and extremely unusual hardship' if returned to Honduras, but he has not made such a showing. Additionally, while the court previously noted in Mayers v. INS that retroactive application of AEDPA § 440(d) would impose new disabilities, this does not affect the conclusion that a due-process ineffective-assistance claim cannot be based on ineligibility for suspension of deportation. The Mayers case does not provide a precedent, as its relevant statements were made in dicta and pertained to permanent residents, who have different legal standings compared to Mejia.