Ernesto Alonso Mejia Rodriguez, the Petitioner-Appellant, initiated two appeals against Janet Reno, the Attorney General, and the Immigration and Naturalization Service (INS). The first appeal (No. 98-5878) challenges the Board of Immigration Appeals' (BIA) denial of Mejia’s 1997 motion to reopen his 1994 deportation proceedings. The second appeal (No. 98-4426) contests the district court’s dismissal of his September 1997 habeas corpus petition under 28 U.S.C. § 2241 regarding his deportation order. The court affirmed both the BIA’s and the district court's decisions, with the dismissal of Mejia's 2241 petition deemed moot.
Mejia, originally from Honduras, entered the U.S. as a nonimmigrant visitor in 1980. In 1986, he was charged in state court with drug offenses, to which he pled no contest based on assurances that such a plea would not lead to immigration consequences and that his record would be sealed. After initially being denied a petition to seal his record, he later succeeded in getting his criminal records sealed in 1990.
The INS commenced deportation proceedings against him in 1990, initially citing two grounds for deportability relating to his immigration status and drug conviction, but later amended the charges to focus solely on his overstay of a nonimmigrant visa, which had expired in August 1990.
Mejia's criminal record was sealed by the state court, yet an immigration judge deemed him deportable for overstaying his nonimmigrant visa as of January 24, 1991. The judge permitted Mejia to apply for suspension of deportation, which he did on February 21, 1991, under INA § 244, 8 U.S.C. § 1254(a)(2) (1991). The criteria for suspension included: 1) deportation based on specified grounds; 2) continuous physical presence in the U.S. for at least seven years before applying or ten years after becoming deportable; 3) good moral character; and 4) exceptional hardship to the alien or their U.S. citizen family members. However, INA § 101(f) disqualified individuals with drug-related convictions from being considered of good moral character, impacting Mejia's eligibility. Mejia did not claim to have any U.S. citizen family members, meaning he would need to prove exceptional hardship on his own behalf. The INS moved to pretermit Mejia's application, citing his drug conviction as a barrier to demonstrating good moral character. On August 2, 1991, after a hearing, the immigration judge granted the INS's motion, using Mejia's sealed cocaine conviction records solely to assess his application for suspension, ultimately determining he could not establish good moral character. Mejia's appeal to the Board of Immigration Appeals (BIA) resulted in an affirmation of the deportation order on January 12, 1994, supporting the immigration judge's findings regarding his deportability due to visa overstay, while dismissing Mejia's argument that his presence in the U.S. was solely to contest deportation.
The BIA affirmed the immigration judge’s ruling that Mejia was deemed convicted under federal immigration law, despite the state court sealing his records. Consequently, Mejia fell into a category of aliens subject to deportation due to a controlled-substance conviction, leading to the conclusion that he was ineligible for a suspension of deportation. Mejia was a fugitive from May 1995 until September 1997, having been ordered to report for deportation to Honduras but failing to appear. He did not pursue judicial review of the BIA's January 1994 decision and absconded instead.
While still a fugitive, Mejia successfully petitioned the Florida state court in May 1997 for a writ of coram nobis, arguing ineffective legal representation during his criminal proceedings, which resulted in the state court vacating his drug-trafficking conviction on August 1, 1997. Following this, the Florida State's Attorney dismissed the cocaine-trafficking charges.
On September 23, 1997, the INS detained Mejia to enforce the deportation order from January 1994. Mejia filed two motions on September 26, 1997, to reopen his deportation proceedings—one with the immigration judge and the other with the BIA—claiming his previous conviction had been vacated. The BIA denied his motion on November 27, 1998, citing that it was untimely as it was filed beyond the 90-day limit stipulated in 8 C.F.R. § 3.2(c)(2). Subsequently, on December 14, 1998, Mejia filed a petition for review of the BIA’s decision in court.
On the same day that he filed his motions to reopen, Mejia also submitted a 28 U.S.C. § 2241 habeas corpus petition in the U.S. District Court for the Southern District of Florida. In this petition, he alleged that the immigration judge’s pretermination of his application for suspension of deportation was based on an unconstitutional conviction, which the Florida state courts had vacated, and claimed that ineffective assistance of counsel in the state court adversely affected his federal immigration proceedings.
Mejia claimed that his due process rights were violated when he was denied the opportunity to seek a suspension of deportation based on a state drug conviction obtained unconstitutionally. The district court dismissed Mejia's habeas petition on September 26, 1997, ruling it was untimely under INA § 106(a)(1), which had been repealed by the AEDPA. Mejia filed a motion for reconsideration, arguing the court misapplied the repealed statute and that his petition was based on 28 U.S.C. § 2241. On October 7, 1997, the court granted a stay of deportation but denied the motion for reconsideration on November 14, 1997. Mejia subsequently filed a renewed habeas petition on November 21, 1997, asserting the same claims and jurisdiction basis. However, on March 12, 1998, the district court dismissed this renewed petition and denied another stay of deportation, citing untimeliness in filing for a motion to reopen, which was filed after the permissible windows under 8 C.F.R. § 3.23. Mejia's habeas corpus petition was deemed an attempt to compel the immigration judge to consider an untimely motion. Following this dismissal, Mejia filed a Notice of Appeal, and a temporary stay of deportation was granted pending appeal. The case involves two appeals: one regarding the dismissal of the § 2241 petition and another concerning the BIA's denial of Mejia's motion to reopen. Mejia contended that a full review of his petition could negate the need for addressing the district court's dismissal. The court ultimately decided to consider the merits of his petition for review, dismissing the § 2241 petition as moot without determining the jurisdictional question related to the INA's applicability before or after IIRIRA amendments, noting the existing circuit split on whether a motion to reopen constitutes a new proceeding or a continuation of prior deportation proceedings.
In Lerma de Garcia v. INS and related cases, it is established that if a motion to reopen is deemed a new proceeding, judicial review of the Board of Immigration Appeals (BIA)'s denial would be subject to the Immigration and Nationality Act (INA) as modified by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The Court holds jurisdiction over petitions challenging final deportation orders under both pre-IIRIRA and post-IIRIRA statutes. The standard of review for the BIA's denial of a motion to reopen is for an abuse of discretion.
Mejia's motions to reopen were untimely, as he failed to present his ineffective-assistance of counsel argument to the BIA, which could preclude raising the claim in his petition for review. Although some courts allow raising such claims for the first time in a petition, the Court does not address this due to Mejia's lack of establishing an ineffective-assistance claim. The BIA rejected Mejia's motions based on their late filing, occurring well beyond the 90-day limit mandated by BIA regulations. The BIA's conclusion on the untimeliness of Mejia's motions was correct.
The Court emphasizes that statutes of limitations are fundamental to a well-ordered judicial system and are not merely technicalities, even if they may prevent the pursuit of some claims. Therefore, even assuming a constitutional violation occurred in Mejia's deportation proceedings, the application of the limitations period does not raise constitutional issues simply because it leaves him without a remedy.
Mejia asserts that his motion to reopen deportation proceedings is time-barred due to ineffective assistance of counsel during those proceedings. He claims his attorneys misinformed him regarding the implications of his no-contest plea on his immigration status and pursued a frivolous legal argument concerning his deportation. He argues that had his counsel performed adequately, he would have sought to vacate his state sentence sooner and reopened his deportation case within the limitations period, thereby avoiding deportation.
Mejia's claim connects to a violation of his Fifth Amendment right to due process, focusing on his eligibility for suspension of deportation, which is contingent on the discretion of the Attorney General. He does not dispute the grounds for his deportation due to overstaying his student visa, which is unrelated to his drug conviction.
The analysis points out that the right to effective counsel in deportation proceedings arises under the Due Process Clause rather than the Sixth Amendment. To establish ineffective assistance, Mejia must demonstrate that his counsel's performance was so deficient that it compromised the fairness of the proceedings, which may require showing both deficient representation and substantial prejudice. Furthermore, it is noted that failing to obtain discretionary relief does not equate to a deprivation of liberty interest.
In Connecticut Board of Pardons v. Dumschat, the Supreme Court determined that state inmates do not have a constitutionally protected liberty interest in having their sentences commuted, even if the state has a history of doing so. The Court emphasized that a constitutional entitlement cannot arise merely from past discretionary actions by the state. The expectation of a felon regarding sentence commutation or pardon is deemed a unilateral hope rather than a protected interest under the Due Process Clause. This principle was applied in Garcia-Mir v. Meese, where Cuban aliens asserted a liberty interest in remaining paroled during their immigration proceedings. The court recognized prior actions by Congress and the President but concluded that without statutory or regulatory limitations on executive discretion, such expectations do not constitute a protected liberty interest. Similar conclusions were reached by the Seventh and Tenth Circuits, which ruled that aliens do not possess protected interests in immigration status adjustments or deferred action, as these decisions are also discretionary. The concept of parole in immigration allows entry into the U.S. while proceedings are pending, but it remains a discretionary relief. Ultimately, suspension of deportation, like the other forms of relief discussed, is an act of grace under the sole discretion of the Attorney General.
An alien is not entitled to suspension of deportation, even if they meet statutory eligibility requirements, as this relief is discretionary and akin to an executive pardon. The Attorney General has broad discretion to narrowly interpret the extreme hardship requirement. Legal precedents affirm that deficient attorney representation does not violate due process if it only affects eligibility for such discretionary relief, as the likelihood of receiving suspension is too speculative for judicial review. Just like a convicted felon lacks a constitutional right to a pardon, an alien has no due process rights to suspension of deportation. Consequently, an alien cannot claim prejudice from ineligibility for this discretionary act of grace, as there are no standards to assess whether the Attorney General would have granted relief. In this case, Mejia's claims of his counsel's deficient representation do not establish a due process violation since he cannot show that he would have avoided deportation or demonstrated extreme hardship. Therefore, the BIA correctly denied Mejia's motion to reopen as untimely, without any constitutional error.
The Board of Immigration Appeals' final order of deportation is affirmed, and the appeal from the district court's judgment dismissing the habeas corpus petition is dismissed as moot. The court notes that its previous observations in Mayers v. INS regarding the retroactive application of AEDPA § 440(d) do not affect its current conclusion that a due-process ineffective-assistance-of-counsel claim cannot be based on ineligibility for suspension of deportation. Three reasons support this conclusion: (1) the Mayers statement regarding retroactivity is considered dicta since it did not need to address the retroactive effect of § 440(d); (2) the argument that a statute creates a new disability differs fundamentally from the conclusion that such a disability does not engage a constitutionally protected liberty interest; and (3) the Mayers case pertained to permanent residents who have a greater expectation of remaining in the U.S., unlike the current situation.
