Afanwi v. Mukasey

Vacated by Supreme Court, October 5, 2009

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH AFANWI, 

Petitioner,

v.

 No. 06-1236

MICHAEL B. MUKASEY, Attorney

General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

(A96-269-753)

Argued: September 25, 2007

Decided: May 19, 2008

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and

T. S. ELLIS, III, Senior United States District Judge

for the Eastern District of Virginia, sitting by designation.

Petition for review denied by published opinion. Senior District Judge

Ellis wrote the opinion, in which Chief Judge Williams and Judge

Duncan joined.

COUNSEL

ARGUED: Lawrence David Rosenberg, JONES DAY, Washington,

D.C., for Petitioner. Jennifer Jeanette Keeney, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Respondent. ON BRIEF: Kelly M. Cullen, JONES

2 AFANWI v. MUKASEY

DAY, Dallas, Texas; Julia C. Ambrose, Esther Slater McDonald,

JONES DAY, Washington, D.C., for Petitioner. Peter D. Keisler,

Assistant Attorney General, Civil Division, Michelle Gorden Latour,

Assistant Director, Office of Immigration Litigation, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

ELLIS, Senior District Judge:

In this immigration and asylum case, petitioner Joseph Afanwi, a

citizen of Cameroon, seeks review of three Board of Immigration

Appeals (BIA) orders: (i) a November 29, 2005 Order affirming an

immigration judge’s denial of Afanwi’s asylum claim; (ii) a February

13, 2006 Order denying Afanwi’s motion to rescind and reissue the

November 29 Order; and (iii) a May 12, 2006 Order denying Afan-

wi’s motion to reopen immigration proceedings. For the reasons that

follow, the petition is denied.

I.

Afanwi, a citizen of Cameroon, entered the United States legally

in July, 2002. As a non-immigrant visitor, Afanwi was authorized to

remain in the United States only until January 23, 2003. On January

20, 2003, Afanwi filed, pro se, an application for asylum, withholding

of removal, and protection under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (CAT).1 Afanwi claimed that he was a member of the

Social Democratic Front2 and the Southern Cameroons National Coun-

cil,3 and that his membership and involvement in these groups made

him a target of persecution in Cameroon.

1

Dec. 10, 1984, 1465 U.N.T.S. 85; S. Treaty Doc. No. 100-20 (1990).

2

The Social Democratic Front is an opposition political party affiliated

with the Socialist International.

3

The Southern Cameroons National Council is a secessionist organiza-

tion seeking ‘decolonization’ of the predominantly English-speaking

south-western region of Cameroon.

AFANWI v. MUKASEY 3

Afanwi’s application was referred to an immigration judge (IJ), and

while the application was pending the Immigration and Naturalization

Service (INS)4 began removal proceedings by filing a Notice to

Appear before the IJ. The INS alleged that Afanwi was removable

pursuant to the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(1)(B), because he had remained in the United States longer

than permitted. Afanwi resisted removal on the same grounds under-

lying his asylum, withholding of removal, and CAT application. The

IJ issued a written opinion finding Afanwi’s claims lacking in credi-

bility and consequently denied his asylum, withholding of removal,

and CAT claims. Afanwi’s timely appeal to the BIA was unsuccess-

ful; the BIA affirmed the IJ’s decision and dismissed Afanwi’s appeal

on November 29, 2005.

The BIA sent a copy of its November 29, 2005 Order to Afanwi’s

attorney of record at the time,5 but because the attorney had relocated

to another office and did not check his mail until early January 2006,

Afanwi’s counsel did not learn of the BIA’s Order until after the

deadline for filing a petition for judicial review had passed. Afanwi

was therefore unable to file a timely petition for review of the BIA’s

November 29, 2005 Order. Instead, Afanwi filed a motion to rescind

and reissue the November 29, 2005 decision and Order to allow him

to file a timely petition. In support of this motion, Afanwi argued that

the BIA had used an incomplete address when it sent the November

29, 2005 Order to his attorney, which, he said, "could have delayed

delivery" thereby preventing him from filing a timely appeal. On Feb-

ruary 13, 2006 the BIA denied Afanwi’s motion to rescind and reis-

sue.

Afanwi then filed a motion to reopen his application on two

grounds: (i) that new evidence relating to his asylum claim justified

reopening his application, and (ii) that Afanwi had received ineffec-

tive assistance of counsel. This effort also failed. The BIA denied

Afanwi’s motion to reopen on May 12, 2006, finding (i) that the new

4

The INS was subsequently incorporated into the Department of

Homeland Security. See Homeland Security Act of 2002, Pub.L. 107-

296, 116 Stat. 2135 (codified as amended in scattered sections of 6

U.S.C.).

5

We note that Afanwi is now represented by different counsel.

4 AFANWI v. MUKASEY

evidence proffered by Afanwi failed to remedy the shortcomings of

his original application, and (ii) that Afanwi’s ineffective assistance

claim was beyond the BIA’s jurisdiction.

Following the BIA’s denial of his motions, Afanwi filed this peti-

tion for review with this court on February 27, 2006, seeking review

of the BIA’s November 29, 2005 Order affirming the denial of his

asylum, withholding of removal, and CAT claims. Afanwi "corrected"6

this petition on March 8, 2006, to add a request for review of the

BIA’s February 13, 2006 Order denying his motion to rescind and

reissue. Afanwi further "amended" the petition on June 8, 2006, to

seek review of the BIA’s May 12, 2006 Order denying his motion to

reopen.7 Respondent filed a motion to dismiss the petition on March

2, 2006, and Afanwi responded in opposition on March 16, arguing

that his amended petition rendered respondent’s motion moot. Fol-

lowing oral argument, the parties were instructed to file supplemental

briefs addressing whether an alien has a Fifth Amendment right to

effective assistance of counsel in the filing of a petition for review

and, if so, whether the right extends to other aspects of the petition-

for-review process. The parties have filed their supplemental briefs,

and the appeal is now ripe for disposition.

II.

The Immigration and Naturalization Act (INA) vests courts of

appeals with jurisdiction to review final orders of removal of an alien.

8 U.S.C. § 1252 (2005). An order of removal — formerly denomi-

nated an order of deportation8 — is "the order of the special inquiry

officer, or other such administrative officer to whom the Attorney

General has delegated the responsibility for determining whether an

alien is deportable, concluding that the alien is deportable or ordering

6

Thus, the term "corrected petition" refers herein to Afanwi’s March

8, 2006 petition for review.

7

Thus, the term "amended petition" refers herein to Afanwi’s June 8,

2006 petition for review.

8

Illegal Immigration Reform and Immigrant Responsibility Act of

1996 § 309, Pub. L. No. 104-208, 110 Stat. 3009-546, at 3009-627

(1996); see also Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 104 (4th

Cir. 2001).

AFANWI v. MUKASEY 5

9

deportation." Such an order becomes final upon the earlier of "a

determination by the Board of Immigration Appeals affirming such

order" or "the expiration of the period in which the alien is permitted

to seek review of such order by the Board of Immigration Appeals."10

The INA further provides that a petition for review "must be filed not

later than 30 days after the date of the final order of removal."11

Because Afanwi seeks review of three separate orders — namely, (i)

the November 29, 2005 Order affirming the immigration judge’s

denial of Afanwi’s asylum, withholding of removal, and CAT claims,

(ii) the February 12, 2006 Order denying Afanwi’s motion to rescind

and reissue, and (iii) the May 13, 2006 Order denying Afanwi’s

motion to reopen — we will consider each individually.

Before doing so, however, we must address a threshold jurisdic-

tional matter, namely whether Afanwi has correctly invoked this

court’s jurisdiction by filing procedurally proper petitions. Respon-

dent argues that Afanwi’s corrected and amended petitions are proce-

durally improper, and that we therefore lack jurisdiction to review the

BIA’s orders denying Afanwi’s motion to rescind and reissue and

motion to reopen. According to respondent, the Supreme Court in

Stone v. I.N.S., 514 U.S. 386 (1995), construed the INA to require

separate petitions for (1) review of the original order of removal and

(2) review of any subsequent motions for reconsideration. In other

words, respondent claims that Stone required Afanwi to file a separate

petition for review for each of the three orders in issue on this appeal.

This argument misreads Stone, for that decision, closely read, does

not require that a petitioner must, in all circumstances, file a separate

petition for review for each order. Instead, Stone stands for no more

than the unremarkable proposition that a petitioner who files a motion

for reconsideration of an order cannot wait for disposition of that

motion before filing a petition for review of the order for which

reconsideration is sought. In other words, Stone avoids delaying judi-

cial review of an order that is pending reconsideration by requiring

timely filing of a petition for review of that order notwithstanding that

9

8 U.S.C. § 1101(a)(47)(A).

10

8 U.S.C. § 1101(a)(47)(B).

11

8 U.S.C. § 1252(b)(1).

6 AFANWI v. MUKASEY

a motion for reconsideration remains unresolved. Stone further con-

templates the filing of a separate petition once the motion for recon-

sideration is resolved and the subsequent consolidation of these

petitions by the court of appeals. In the words of Stone, "deportation

orders are to be reviewed in a timely fashion after issuance, irrespec-

tive of the later filing of a motion to reopen or reconsider." 514 U.S.

at 395.

Correctly read, therefore, Stone is no obstacle to our jurisdiction to

consider Afanwi’s petition. He was not required to file separate peti-

tions for review of the BIA’s February 13, 2006 Order denying his

motion to rescind and reissue and the BIA’s May 12, 2006 Order

denying his motion to reopen. Petitioner’s March 8, 2006 corrected

petition and his June 8, 2006 amended petition suffice to bring these

matters before us for review.12 We therefore turn to a consideration

of each of the BIA’s decisions in turn.

III.

Afanwi first seeks review of the BIA’s November 29, 2005 Order

affirming the immigration judge’s denial of his (1) asylum, (2)

request for withholding of removal, and (3) CAT application. Afanwi

concedes, as he must, that this petition is untimely, for the INA

required him to file his petition not later than 30 days after the BIA’s

Order, that is, not later than December 29, 2005.13 It is undisputed that

the untimeliness of Afanwi’s petition with respect to the November

29 Order is attributable to his attorney’s failure to check his mailbox

following his transfer to another office. As a result of this oversight,

Afanwi and his counsel did not learn of the November 29, 2005 Order

until after the expiration of the 30-day period allowed by the INA for

filing of a petition for review. Specifically, Afanwi filed this petition

on February 27, 2006, some sixty days after the BIA’s November 29,

2005 Order and thirty days after the statutory deadline. Afanwi’s peti-

tion is accordingly untimely with regard to the BIA’s November 29,

2005 Order, and it must be denied in this respect.

12

It is undisputed that the corrected and amended petitions satisfy the

requirements of Rule 15, Fed. R. App. P., and were timely filed.

13

8 U.S.C. § 1252(b)(1).

AFANWI v. MUKASEY 7

IV.

Afanwi next seeks review of the BIA’s February 13, 2006 Order

denying Afanwi’s motion to rescind and reissue the November 29

Order. We affirm the BIA’s February 13 Order for two reasons.

First, Afanwi sought reissue of the November 29 Order on the

ground that the BIA had used an incomplete address14 that may have

delayed delivery of the November 29 Order. There is no evidence that

the incomplete address caused any delay in delivery of the Order.

Afanwi has conceded that his attorney did not check his mailbox until

well after the deadline for a timely petition for review had passed, and

thus he cannot show that the incomplete address prevented his filing

a timely petition for review; to the contrary, it is clear that had the

BIA used a complete address Afanwi would still have missed the fil-

ing deadline owing to his attorney’s failure to check his mail.15

Second, the BIA is not obligated to rescind and reissue its orders

in circumstances such as these, as the decision to rescind and reissue

when the BIA has committed no error is a matter of grace and discre-

tion. Although this issue is one of first impression in this circuit, the

Seventh Circuit has addressed the issue in a similar situation in Fir-

mansjah v. Ashcroft.16 There, the petitioning alien had not received

the BIA’s order of removal until after the deadline to file a petition

for review had passed.17 The Seventh Circuit concluded that while

"nothing prevents the [BIA] from entering a new removal order,

which is subject to a fresh petition for review,"18 the court would "not

say that the board must reenter its decision if notice miscarries;

[rather,] when the [BIA] extends to aliens this measure of grace, there

is no legal obstacle to judicial review."19 We join the Seventh Circuit

14

Although the BIA employed a full municipal address and named

Afanwi’s attorney as the recipient, the address omitted the name of the

attorney’s law firm.

15

It is also worth noting that the BIA had previously used this incom-

plete address to correspond with Afanwi’s attorney without incident.

16

347 F.3d 625 (7th Cir. 2003).

17

Id. at 626.

18

Id. at 627.

19

Id.

8 AFANWI v. MUKASEY

in holding that the decision to rescind and reissue an order of removal

is properly left to the discretion of the BIA, and that where, as here,

a petitioner fails to receive an order through no fault of the BIA, a

court of appeals properly defers to the BIA’s decision not to extend

this measure of grace. Accordingly, Afanwi’s petition for review is

denied with respect to the BIA’s February 13, 2006.

V.

Finally, Afanwi seeks review of the BIA’s May 12, 2006 Order

denying his motion to reopen his asylum, withholding of removal, and

CAT application. The INA permits an alien to file a single motion to

reopen removal proceedings.20 A BIA decision denying the motion to

reopen is reviewed for abuse of discretion,21 and we will reverse such

a decision only if it is arbitrary, capricious, or contrary to law.22

Afanwi asked the BIA to reopen his application on two grounds:

(i) new evidence supporting his claim for asylum, and (ii) ineffective

assistance of counsel. The BIA denied Afanwi’s motion on each

ground.

First, the BIA found that the new evidence did not support reopen-

ing Afanwi’s application because it did not correct the application’s

existing deficiencies. We affirm the BIA’s reasoned decision in this

respect. To establish eligibility for asylum, Afanwi must demonstrate

that he is a refugee, that is, a "person who is unable to return to his

or her country because of persecution or a well-founded fear of perse-

cution on account of race, religion, nationality, membership in a par-

ticular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A);

Rusu v. I.N.S., 296 F.3d 316, 324 (4th Cir. 2002). The new evidence

presented in Afanwi’s motion to reopen — namely, his allegation that

Cameroon police visited Afanwi’s home in that country looking for

him — does not create a well-founded fear of persecution, and the

BIA’s decision to that effect cannot be said to be arbitrary, capricious,

20

8 U.S.C. § 1229a(c)(7).

21

I.N.S. v. Doherty, 502 U.S. 314, 323-24 (1995).

22

Barry v. Gonzales, 445 F.3d 741, 744-45 (4th Cir. 2006).

AFANWI v. MUKASEY 9

23

or contrary to law. Accordingly, the BIA’s denial of Afanwi’s

motion to reopen on this ground is affirmed.

Next, the BIA found that it lacked jurisdiction over Afanwi’s inef-

fective assistance of counsel claim because the allegedly ineffective

assistance, namely counsel’s failure to file a timely petition for review

of the Board’s November 29, 2005 decision, occurred after the BIA

had issued its final order of removal. The question, therefore, is

whether the BIA has jurisdiction to consider an ineffective assistance

of counsel claim when that claim arises, as here, from the failure to

file a timely petition for review with the court of appeals. A review

of the authority on this issue discloses no settled or uniform view. The

courts of appeals have not squarely addressed the issue, although

some, including the Fourth Circuit, have apparently assumed without

deciding that the BIA does have jurisdiction over such ineffective

assistance of counsel claims and have affirmed BIA decisions regard-

ing such claims on the merits.24 The BIA itself has issued contradic-

tory opinions on the subject, at times holding, as it did here, that

failure to file a timely petition for review is beyond the BIA’s jurisdic-

tion,25 and at times assuming that such a claim is properly within the

23

See Barry, 445 F.3d at 744-45.

24

See Gidiglio v. I.N.S., 35 F.3d 556 (Table) (4th Cir. 1994) (unpub-

lished) (affirming BIA’s denial of alien’s motion to reopen based on

attorney’s failure to file timely petition for review, on ground that alien

had not demonstrated prejudice as required by Matter of Lozada, 19 I.

& N. Dec. 637 (BIA 2003)); see also Sako v. Gonzales, 434 F.3d 857,

862-66 (6th Cir. 2006) (same); Ljucovic v. Gonzales, 144 Fed. Appx. 500

(6th Cir. 2005) (same). But see Dearinger ex rel. Volkova v. Reno, 232

F.3d 1042, 1044 n.4 (9th Cir. 2000) (asserting without explanation that

"[a] claim of ineffective assistance of counsel occurring after the BIA has

ruled may be raised with the BIA by filing a motion to reopen."). This

confusion appears to arise from courts’ reliance on cases involving an

attorney’s failure to appeal an IJ’s decision to the BIA — a scenario in

which the BIA clearly does enjoy jurisdiction. See Matter of Lozada, 19

I. & N. Dec. 637.

25

See In re Juan Manuel Orozco-Solis, 2006 WL 1558842 (BIA April

11, 2006) (ineffective assistance claim based on counsel’s failure to

inform alien of alien’s appeal rights was beyond the BIA’s jurisdiction);

In re Alva Mercedes Duarte-Garcia, 2006 WL 729793 (BIA Feb. 14,

2006) (ineffective assistance claim based on counsel’s failure to file for

petition for review with court of appeals was beyond the BIA’s jurisdic-

tion); In re Robert Michael St. George Grant, 2005 WL 3952740 (BIA

Aug. 25, 2005) (same); In re Lourdes Soriano-Vino, 2003 WL 23508567

(BIA Dec. 23, 2003) (same).

10 AFANWI v. MUKASEY

26

BIA’s jurisdiction. Because the BIA denied Afanwi’s motion to

reopen on the grounds that it lacked jurisdiction over his ineffective

assistance claim, the matter is squarely before us, and we take this

opportunity to state clearly that the BIA does not have jurisdiction

over an ineffective assistance claim arising out of an alien’s counsel’s

failure to file a timely petition for review with the court of appeals.

The BIA has jurisdiction to review "questions of law, discretion,

and judgment and all other issues in appeals from decisions of immi-

gration judges."27 An attorney’s failure to monitor his mailbox for

receipt of a BIA decision and to file a timely petition in the court of

appeals for review of that decision is not a "question[ ] of law, discre-

tion, [or] judgment [or] other issue[ ] in appeal[ ] from decisions of

immigration judges."28 As the BIA itself has concisely put it, "any

error before the [court of appeals] by [an alien’s] counsel does not

implicate the Board since the Board made no error as a result of [the

alien’s] counsel’s alleged ineffectiveness on this ground."29 Accord-

ingly, we affirm the Board’s denial of Afanwi’s motion to reopen on

the grounds of ineffective assistance of counsel and dismiss Afanwi’s

petition for review in this regard, since the alleged ineffective assis-

tance, if any, occurred before this court, not before the Board of

Immigration Appeals.

Yet this does not end our analysis, for the Immigration and Nation-

ality Act vests the courts of appeals with jurisdiction over "all ques-

tions 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." 8

U.S.C. § 1252(b)(9) (2005). This section, known as the "zipper"

26

See In re Nuradin Ahmed, 2005 WL 1104347 (BIA Mar. 31, 2005)

(counsel’s filing of inadequate motion to reconsider with the BIA rather

than timely petition for review with court of appeals constituted ineffec-

tive assistance); see also In re Dean Maurice Morgan, 2006 WL

1647462 (BIA May 9, 2006) (rejecting alien’s ineffective assistance

claim based on counsel’s failure to inform alien of alien’s appeal rights

because alien had not presented the claim in an appropriate manner).

27

8 C.F.R. § 1003.1(d)(3)(ii).

28

Id.

29

In re Duarte-Garcia, 2006 WL 729793.

AFANWI v. MUKASEY 11

clause, consolidates review of matters arising from removal proceed-

ings "only in judicial review of a final order under this section," and

strips courts of habeas jurisdiction over such matters. Because Afan-

wi’s ineffective assistance claim is before the court pursuant to a

timely petition for review of an order of removal — namely the BIA’s

denial of Afanwi’s motion to reopen — jurisdiction over this claim

is appropriate under § 1252(b)(9).

Afanwi’s ineffective assistance claim requires us to address

whether the Constitution guarantees effective assistance of counsel to

an alien in removal proceedings. It is well settled that removal pro-

ceedings are civil in nature, not criminal.30 It is equally well settled

that because removal proceedings are not criminal proceedings, aliens

facing removal are not entitled to the Sixth Amendment’s right to

counsel, nor to the associated right to effective counsel.31 Yet, aliens

facing removal are not without rights; Congress, by statute, has cre-

ated a right to retained counsel at removal proceedings,32 and it is

quite clear that aliens enjoy a Fifth Amendment right to due process

in such proceedings.33

30

INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

31

Romero v. U.S. INS, 399 F.3d 109, 112 (2d Cir. 2005); Al Khouri v.

Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004); Goonsuwan v. Ashcroft, 252

F.3d 383, 385 n.2 (5th Cir. 2001); Hernandez v. Reno, 238 F.3d 50, 55

(1st Cir. 2001); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.

2001); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999);

Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n.6 (6th Cir.

1999); Gandarillas-Zambrana v. Board of Immigration Appeals, 44 F.3d

1251, 1256 (4th Cir. 1995); Castaneda-Suarez v. INS, 993 F.2d 142, 144

(7th Cir. 1993); Michelson v. INS, 897 F.2d 465, 467-68 (10th Cir.

1990); Baires v. INS, 856 F.2d 89, 90 (9th Cir. 1988).

32

8 U.S.C. § 1362 (1996) ("In any removal proceedings before an

immigration judge and in any appeal proceedings before the Attorney

General from any such removal proceedings, the person concerned shall

have the privilege of being represented (at no expense to the Govern-

ment) by such counsel, authorized to practice in such proceedings, as he

shall choose.").

33

Reno v. Flores, 507 U.S. 292, 306 (1993) ("It is well established that

the Fifth Amendment entitles aliens to due process of law in deportation

proceedings.").

12 AFANWI v. MUKASEY

At issue is whether Afanwi’s Fifth Amendment right to due process

in his removal proceedings includes the right to a remedy for ineffec-

tiveness of retained counsel. Since the 1970s, a number of circuits

have held that counsel’s performance in a removal proceeding can be

so deficient that it deprives the alien of his due process right to a fair

hearing.34 Interestingly, this line of cases grows out of the Fifth Cir-

cuit’s decision in Paul v. I.N.S., which does not squarely recognize a

right to effective assistance of retained counsel but merely suggests

that such a right, if it existed, would be grounded in the Fifth Amend-

ment rather than the Sixth.35

According to the Paul line of cases, an alien’s counsel will violate

his client’s Fifth Amendment right when his performance is so defi-

cient that it affects the fundamental fairness of the proceeding,36 caus-

ing the alien to suffer prejudice as a result.37 A number of courts have

34

See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002);

Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001); Akinwunmi

v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999); Mejia Rodriguez v. Reno,

178 F.3d 1139, 1146 (11th Cir. 1999); Mojsilovic v. INS, 156 F.3d 743,

748 (7th Cir. 1998); Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d

Cir. 1992); Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988);

Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986).

35

Paul v. U.S. INS, 521 F.2d 194 (5th Cir. 1975) ("[Any effective assis-

tance of counsel] right an alien may have [in removal proceedings] is

grounded in the fifth amendment guarantee of due process rather than the

sixth amendment right to counsel," but "the existence, let alone the

nature and scope, of such a right has not been established.").

36

Goonsuwan, 252 F.3d at 385 n.2; Huicochea-Gomez, 237 F.3d at

699; Iavorski v. U.S. INS, 232 F.3d 124, 128-29 (2d Cir. 2000); Mejia

Rodriguez, 178 F.3d at 1146; Michelson v. INS, 897 F.2d 465, 468 (10th

Cir. 1990); Magallanes-Damian, 783 F.2d at 933.

37

Goonsuwan, 252 F.3d at 385 n.2; Michelson, 897 F.2d at 468; see

also Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) ("The two compo-

nents of this formulation, prejudice and fundamental fairness, are analo-

gous in this specific analytical context. "Prejudice" inquires, ex post,

whether due process was violated by evaluating whether the alien’s

claims could have supported a different outcome. "Fundamental fairness"

examines the process afforded ex ante, considering whether the denial of

effective counsel makes such a proceeding fundamentally unfair.").

AFANWI v. MUKASEY 13

held that fundamental fairness is affected when an alien is prevented

from reasonably presenting his case.38

Were we to follow these cases in holding that a retained counsel’s

ineffectiveness can deprive an alien of a fundamentally fair removal

proceeding, we would next have to determine whether Afanwi’s

counsel’s alleged ineffectiveness in failing to file a timely petition for

review of the BIA’s November 29, 2005 Order deprived Afanwi of

an opportunity reasonably to present his case and whether that failure

caused Afanwi prejudice. But we decline to engage in this analysis,

because we hold today, contrary to some of our sister circuits, that

retained counsel’s ineffectiveness in a removal proceeding cannot

deprive an alien of his Fifth Amendment right to a fundamentally fair

hearing.

It is a basic principle of American constitutional law that with one

exception,39 the Constitution applies only to the federal government

which it creates and, via the Fourteenth Amendment and certain other

clauses, to the governments of the several states. The Supreme Court

long ago held that the rights guaranteed by the Constitution "cannot

be impaired by the wrongful acts of individuals, unsupported by state

authority in the shape of laws, customs, or judicial or executive proceed-

ings."40 It follows that an alien’s counsel cannot violate his client’s

38

Dakane v. U.S. Att’y General, 399 F.3d 1269, 1273 (11th Cir. 2003);

Denko v. INS, 351 F.3d 717, 723-24 (6th Cir. 2003); Uspango, 289 F.3d

226, 231; Bernal-Vallejo v. INS, 195 F.3d 56, 63-64 (1st Cir. 1999);

Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985).

39

The only clause in the Constitution that directly regulates the conduct

of private citizens is the Thirteenth Amendment, which "is not a mere

prohibition of state laws establishing or upholding slavery, but an abso-

lute declaration that slavery or involuntary servitude shall not exist in

any part of the United States." Civil Rights Cases, 109 U.S. at 20; see

also City of Memphis v. Greene, 451 U.S. 100, 120 (1981) (same).

40

Civil Rights Cases, 109 U.S. 3, 17 (1883); see also Public Utilities

Commission of District of Columbia v. Pollak, 343 U.S. 451, 461-62

(1952) (Fifth Amendment applies to and restricts "only the Federal Gov-

ernment and not private persons."); Obleshchenko v. Ashcroft, 392 F.3d

970 (8th Cir. 2004) ("Constitutional rights are rights against the govern-

ment; that is, they ensure that the government will not act in a certain

14 AFANWI v. MUKASEY

Fifth Amendment rights unless he can be said to be engaging in state

action.41

The standard for finding federal government action under the Fifth

Amendment is the same as that for finding state action under the

Fourteenth Amendment,42 namely "whether there is a sufficiently

close nexus between the [federal government] and the challenged

action of the [private actor] so that the action of the latter may be

fairly treated as that of the [federal government]."43 This may occur,

as is not true here, where a private actor exercises powers that are tra-

ditionally reserved exclusively to the government.44 Importantly, the

mere fact that a private actor performs a function that serves the pub-

lic does not create a government action.45

way."). It is interesting to note that in Obleshchenko the Eighth Circuit

stated that "[b]ecause [constitutional rights are rights against the govern-

ment, and] this is necessarily as true of rights secured by the fifth amend-

ment as it is of any other constitutional right, we find it difficult to see

how an individual, such as [an alien’s] attorney, who is not a state actor,

can deprive anyone of due process rights." Notwithstanding this state-

ment the panel in Obleshchenko, recognizing contrary authority from

other circuits, assumed without deciding that the alien petitioner did have

a Fifth Amendment right to effective assistance of counsel, but denied

relief on the ground that the petitioner had not shown prejudice. 392 F.3d

at 972-73.

41

See, e.g. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Com-

mittee, 483 U.S. 522, 542-43 (1987) (where plaintiff alleges a violation

of the Fifth Amendment, "[t]he fundamental inquiry is whether the

[defendant] is a governmental actor to whom the prohibitions of the Con-

stitution apply."); see also Correctional Services Corp. v. Malesko, 534

U.S. 61, 66 (2001) (declining to recognize an implied constitutional right

of action against private entities acting under color of federal law).

42

Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 449 (1st

Cir. 1983); Warren v. Government Nat’l Mortgage Ass’n, 611 F.2d 1229,

1232 (8th Cir. 1980).

43

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974).

44

Id. at 352-53.

45

Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

AFANWI v. MUKASEY 15

These principles, applied here, compel the conclusion that Afanwi

has not suffered any deprivation of his Fifth Amendment rights. Sim-

ply put, Afanwi’s counsel was not a state actor, nor is there a suffi-

cient nexus between the federal government and counsel’s

ineffectiveness such that the latter may fairly be treated as a govern-

mental action. To the contrary, Afanwi’s counsel was privately

retained pursuant to 8 U.S.C. § 1362, and his alleged ineffectiveness

— namely his failure to check his mailbox regularly and to file a

timely appeal — was a purely private act. The federal government

was under no obligation to provide Afanwi with legal representation,46

and there was no connection between the federal government and

counsel’s failure to check his mail. Thus, Afanwi’s counsel’s actions

do not implicate the Fifth Amendment, and accordingly counsel’s

alleged ineffectiveness did not deprive Afanwi of due process.47 That

Afanwi was denied an opportunity to petition this court for review of

the BIA’s November 29, 2005 Order may be unfortunate, but it is not

a constitutional violation, and it is only the latter that we may redress.

Afanwi’s petition for review must accordingly be dismissed with

respect to his claim of ineffective assistance of counsel.48

VI.

In summary, we have addressed each of the BIA Orders that are

appropriately before us: the February 13, 2006 Order denying Afan-

wi’s motion to rescind and reissue the November 29 Order, and the

May 12, 2006 Order denying Afanwi’s motion to reopen immigration

46

See supra note 31; see also 8 U.S.C. § 1362 (1996).

47

Of course, an alien’s Fifth Amendment rights can be violated by state

actors, such as the IJ or the BIA, if these actors prevent an alien from

presenting his case.

48

In Figeroa v. U.S. INS, 886 F.2d 76 (4th Cir. 1989), a panel of this

Court assumed, without squarely addressing, the Fifth Amendment issue

we resolve here. Although we are bound by the holding of Figeroa, Doe

v. Charleston Area Medical Center, Inc., 529 F.2d 638, 642 (4th Cir.

1975), we are not bound by the Figeroa panel’s unwritten assumptions.

Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993) (noting that stare

decisis is not applicable unless the issue was "squarely addressed" in the

prior decision); Fernandez v. Keisler, 502 F.3d 337, 343-44 n.2 (4th Cir.

2007) ("We are bound by holdings, not unwritten assumptions.").

16 AFANWI v. MUKASEY

proceedings. We have also addressed the merits of Afanwi’s ineffec-

tive assistance of counsel claim. We have not addressed the merits of

the November 29, 2005 Order affirming the IJ’s denial of Afanwi’s

asylum claim because Afanwi’s petition for review of this Order was

untimely.

For the above reasons, Afanwi’s petition for review with respect to

the BIA’s November 29, 2005 Order, the BIA’s February 13, 2006

Order, the BIA’s May 12, 2006 Order, and Afanwi’s claim of ineffec-

tive assistance of counsel must be denied.

PETITION FOR REVIEW DENIED