Contreras v. Attorney General of United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 10-4235

________________

MARGARITO CONTRERAS,

a/k/a Margarito Contera Flores;

NORMA CONTRERAS,

a/k/a Norma Perez Merito,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

________________

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: Honorable Annie Garcy

(No. A088-194-668 & A088-194-669)

_______________

Argued November 15, 2011

Before: RENDELL and AMBRO, Circuit Judges

and JONES, II,* District Judge

(Opinion filed: January 4, 2012)

Elizabeth C. Surin, Esq.

Thomas C. Brannen, Esq. [ARGUED]

Surin & Griffin

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106-0000

Counsel for Petitioners

Eric H. Holder, Jr., Esq.

Thomas W. Hussey, Esq.

Cindy S. Ferrier, Esq.

Kate Deboer Balaban, Esq.

Matt A. Crapo, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________

OPINION OF THE COURT

________________

*

Honorable C. Darnell Jones, II, District Judge for the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

2

AMBRO, Circuit Judge

This immigration case requires us to decide, among

other things, whether the Fifth Amendment’s Due Process

Clause guarantees an alien effective assistance of counsel in

preparing, filing, and appealing a labor certification

application and a visa petition before the start of removal

proceedings. We hold that it does not, and thus deny the

petition for review.

I. Background

Petitioners Margarito Contreras and his wife Norma,

both natives and citizens of Mexico, entered the United States

unlawfully in 1993 and 1998, respectively. Since 2000,

Margarito has been seeking employment-based permanent

residency in the United States, i.e., a “green card.” This long,

complex process requires submitting several applications with

supporting documentation to the United States Department of

Labor (“DOL”) and the United States Customs and

Immigration Services (“USCIS”) of the Department of

Homeland Security (“DHS”). See Khan v. Att’y Gen., 448

F.3d 226, 228 n.2 (3d Cir. 2006); Matter of Rajah, 25 I. & N.

Dec. 127, 130-33 (BIA 2009).

The process involves three essential steps. First, an

alien’s employer files a Form ETA-750 labor certification

application with the DOL on the alien’s behalf. The DOL

will approve the application only if, among other things, there

are not sufficient United States workers “able, willing,

qualified . . . and available” to perform the job. 8 U.S.C.

§ 1182(a)(5)(A)(i)(I).

3

Second, if the DOL approves the labor certification

application, the employer files it along with a Form I-140 visa

petition with the USCIS. 8 U.S.C. § 1154(a)(1)(F). Among

other things, the employer must prove that it can afford to pay

the alien the proffered wage from the time it filed the labor

certification application until the time the alien obtains lawful

permanent residency. 8 C.F.R. § 204.5(g)(2). If the USCIS

approves the visa petition, then it determines the alien’s

preference classification for a visa and assigns the alien a visa

number. Employment-based visas are subject to numerical

restrictions controlled by the State Department. 8 U.S.C. §

1153(g).

Third and finally, once a visa is “immediately

available,” the alien applies for a status adjustment by filing a

Form I-485 status adjustment application. 8 U.S.C. § 1255(i).

If that application is approved, then the alien becomes a

lawful permanent resident and the DHS issues the alien a

green card.

An individual like Margarito, who would not

ordinarily qualify for lawful permanent residency because he

entered the United States without inspection, may nonetheless

apply if, among other things, he is the beneficiary of a labor

certification application or a visa petition filed on or before

April 30, 2001. See 8 U.S.C. § 1255(i).

Unfortunately, the Contrerases’ former immigration

attorney, Tahir Mella (who was not appellate counsel before

this Court) provided incompetent, and at times ethically

questionable, representation throughout Margarito’s visa

petition process.

In April 2001, Mella prepared a labor certification

application on behalf of Margarito’s long-time employer,

Barrels Italian Foods and Restaurant, and filed it with the

4

DOL before the April 30 statutory deadline. For reasons

unknown, the agency waited more than five years before

approving the application in August 2006. Mella then filed a

visa petition with the USCIS in January 2007. Ten months

after that, in November 2007, the USCIS denied the petition

because Barrels failed to prove that it could afford to pay

Margarito the proffered wage. The USCIS’s written decision,

which it mailed to Mella’s office, indicated that Barrels could

appeal the visa petition denial but that any appeal must be

filed within 33 days. None was ever filed. According to

Mella, he did not file an appeal because Barrels “pulled out”

in December 2007. To the contrary, the owner of Barrels

claims that she has “always been willing to sponsor Margarito

Contreras.”

In January 2008, well after the 33-day appeal window

had closed, Margarito met with Mella to discuss his options.

Mella told him that for $1,000 he could file a “motion to

reopen” the visa petition. Margarito agreed. At some point,

however, Mella instead decided to file a motion to reconsider.

Notably, he neglected to mention to Margarito that the 30-day

time limit to file a motion to reconsider had also passed, see 8

C.F.R. § 103.5(a), but Mella accepted the $1,000. In March

2008 Mella finally filed an untimely motion to reconsider the

USCIS’s denial of the visa petition with the DHS, almost four

months after the USCIS denied the petition and two months

after Margarito paid him the $1,000. The outcome of that

motion (or when it was decided) is not evident from the

record.

Shortly after Mella agreed to file a motion to reopen,

the DHS began removal proceedings against the Contrerases,

charging them with being present unlawfully in the United

States. See 8 U.S.C. § 1182(a)(6)(A)(i). Mella agreed — for

another $5,500 — to represent them at the removal

proceedings. He delegated that representation, however, to

5

others in his office. This delegation was, according to the

Contrerases, contrary to Mella’s agreement to appear

personally in immigration court.

To make matters worse, the attorney Mella sent to the

first removal hearing “might not [have been] fully aware of

the immigration laws,” as the Immigration Judge (“IJ”) later

explained charitably.1 Counsel acknowledged the denial of

Margarito’s visa petition and suggested that a timely appeal

had been filed even though it had not. After further

questioning, however, the IJ sensed that even if the

Contrerases had filed an appeal, it might not have been

timely. Thinking her clients had no other options, counsel

informed the IJ that her clients would be applying for

voluntary departure. The IJ thought the Contrerases would be

“shocked and confused” if she entered an order for voluntary

departure, so she continued the case for a second time to

allow counsel to prepare. The IJ noted that she would

“probably not” continue the case again unless the DHS agreed

or the Contrerases could show that a timely appeal of the

denied employment-based visa petition had been filed.

At the next (and final) hearing in April 2008, yet

another attorney from Mella’s firm represented the

Contrerases. This new attorney indicated that the sole relief

sought was voluntary departure, which the IJ granted. One

1

Among other shortcomings, counsel did not seem to grasp

basic immigration law concepts. For example, she did not

know what a priority date is. Margarito’s priority date is the

date the DOL accepted his labor certification application for

processing: April 27, 2001. See 8 C.F.R. § 204.5(d).

Counsel thought the priority date here was the date Margarito

entered the United States.

6

day before their period of voluntary departure expired, the

Contrerases — through their current counsel — filed a motion

to reopen due to prior ineffective assistance of counsel. The

IJ denied that motion.2

On appeal, the Board of Immigration Appeals (“BIA”)

upheld the IJ’s decision. The Contrerases argued that prior

counsel was ineffective for: (1) filing a labor certification

application with the DOL despite knowing that Margarito’s

employer could not pay the offered wage; (2) failing to file a

timely motion to reconsider the denied visa petition with the

DHS; (3) misleading the IJ by claiming that an appeal of the

denied visa petition had been filed with the DHS; and (4)

failing to request a continuance (rather than voluntary

departure) so that Margarito’s employer could have filed a

new labor certification application and visa petition. The BIA

concluded that the Contrerases failed to “show that the

hearing before the [IJ] was unfair or that, due to any alleged

ineffective assistance of counsel during the course of the

removal proceedings, they were prevented from reasonably

presenting their case.” (Emphasis added.) The BIA further

explained that

[the Contrerases’ primary] arguments of

ineffective assistance of counsel center on

[Margarito’s] pursuit of his application for

adjustment of status by way of an employment-

based visa petition, difficulties over which we

2

The Contrerases claim that the IJ denied their motion to

reopen “based solely on the condition of her docket.” Pet’rs’

Br. 21. The record reveals otherwise. The IJ denied the

motion, among other reasons, because the Contrerases failed

to show that their prior counsel was ineffective or that they

were eligible for adjustment of status.

7

have no jurisdiction. The alleged ineffective

assistance involved counsel who represented

[the Contrerases] before the DHS, counsel who

had been retained several years before these

administrative proceeding were initiated . . . .

(Emphasis in original.) Finally, the BIA concluded that the

IJ’s factual findings were not clearly erroneous and that she

had not erred in concluding that the Contrerases “did not

receive ineffective assistance from [their] former attorney

during the course of the removal proceedings.”

The Contrerases then filed a timely petition for review.

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and

1240.15. We have jurisdiction under 8 U.S.C. § 1252.

II. Standard of Review

When, as here, the BIA affirms an IJ’s decision and

adds analysis of its own, we review both the IJ’s and the

BIA’s decisions. Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.

2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d

Cir. 2001). We review the denial of a motion to reopen for

abuse of discretion and may reverse only if the denial is

arbitrary, irrational, or contrary to law. Shardar v. Att’y Gen.,

503 F.3d 308, 311-12 (3d Cir. 2007). We review de novo

questions of law, such as whether petitioners’ due process

rights to the effective assistance of counsel have been

violated. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir.

2007).

III. Discussion

The Contrerases argue that their prior counsel rendered

ineffective assistance both before and during their removal

proceedings and that this ineffectiveness warrants reopening

8

the proceedings. As noted, counsel was allegedly ineffective

before the removal proceedings for (1) filing a labor

certification application with the DOL despite knowing that

Margarito’s employer could not pay the proffered wage and

(2) failing to file a timely motion to reconsider the denied visa

petition with the DHS. The Contrerases also claim that their

counsel was ineffective during the removal proceedings for

(1) misleading the IJ by claiming that an appeal of the denied

visa petition had been filed with the DHS and (2) failing to

request a continuance (rather than voluntary departure) so that

Margarito’s employer could have filed a new labor

certification application and visa petition. We consider the

allegations based on pre-proceeding attorney conduct first and

then turn to the allegations of ineffectiveness during the

removal proceedings themselves.

A. Claims of Ineffectiveness Before Removal

Proceedings

Because immigration proceedings are civil rather than

criminal in nature, the Sixth Amendment right to the effective

assistance of counsel does not apply. Fadiga, 488 F.3d at 157

n.23. But we have recognized (along with a majority of our

sister Courts of Appeals) that “[a] claim of ineffective

assistance of counsel in removal proceedings is cognizable

under the Fifth Amendment — i.e., as a violation of that

amendment’s guarantee of due process.” Id. at 155; see also

Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong

Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3 To

3

Like our Court, the First, Second, Sixth, Ninth, Tenth, and

Eleventh Circuits have held that the Due Process Clause

guarantees an alien a right to assistance of counsel that is

sufficiently effective to prevent removal proceedings from

being fundamentally unfair. See Zeru v. Gonzales, 503 F.3d

9

violate due process, an attorney’s ineffectiveness must be so

severe as to undermine the fundamental fairness of the

removal proceeding. See Fadiga, 488 F.3d at 155 (“[W]here

counsel does appear for the [alien], incompetence in some

situations may make the proceeding fundamentally unfair

and give rise to a Fifth Amendment due process objection.”)

(emphasis in original) (quoting Hernandez v. Reno, 238 F.3d

50, 55 (1st Cir. 2001)).4

59, 72 (1st Cir. 2007); United States v. Perez, 330 F.3d 97,

101 (2d Cir. 2003); Denko v. INS, 351 F.3d 717, 723-24 (6th

Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.

2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.

2003); Dakane v. Att’y Gen., 399 F.3d 1269, 1273-74 (11th

Cir. 2005). The Fourth and Eighth Circuits have held that

there is no such constitutional right. See Afanwi v. Holder,

526 F.3d 788, 798 (4th Cir. 2008), cert. granted, vacated, &

remanded by 130 S. Ct. 350 (Mem.) (2009); Rafiyev v.

Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Panels of the

Seventh Circuit have issued conflicting decisions on the

matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142,

144 (7th Cir. 1993) (recognizing due process right) with

Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005)

(denying due process right). The Fifth Circuit has

“repeatedly assumed without deciding that an alien’s claim of

ineffective assistance may implicate due process concerns

under the Fifth Amendment.” Mai v. Gonzales, 473 F.3d 162,

165 (5th Cir. 2006).

4

We have identified three requirements of due process in

removal proceedings: “An alien: (1) is entitled to factfinding

based on a record produced before the decisionmaker and

disclosed to him or her; (2) must be allowed to make

10

To make out an ineffective-assistance-of-counsel

claim, an alien must show that prior counsel’s deficient

performance prevented him from reasonably presenting his

case and caused him “substantial prejudice.” Fadiga, 488

F.3d at 155; Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.

2006); Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.

2002). To evaluate the merits of an ineffectiveness claim, we

apply the familiar two-part error-and-prejudice test. Fadiga,

488 F.3d at 157. First, we ask whether “competent counsel

would have acted otherwise.” Id. (quoting Iavorski v. INS,

232 F.3d 124, 129 (2d Cir. 2000)). If so, we ask whether

counsel’s poor performance prejudiced the alien. Id. To

prove prejudice, an alien must show that there is a

“reasonable likelihood” that the result of the removal

proceedings would have been different had the error(s) not

occurred. Id. at 159. This standard “properly requires the

alien to show not just that he received ineffective assistance

in his removal proceedings, but that the challenged order of

removal is fundamentally unfair, because there is a significant

likelihood that the IJ would not have entered an order of

removal absent counsel’s errors.” Id.5

arguments on his or her own behalf; and (3) has the right to

an individualized determination of his or her interests.”

Abdulai, 239 F.3d at 549 (internal citations and quotation

marks omitted).

5

In addition to these substantive requirements, the BIA has

three procedural requirements for motions to reopen based on

ineffectiveness claims (the so-called “Lozada requirements”):

(1) the alien’s motion must be supported by an “affidavit of

the allegedly aggrieved [alien] attesting to the relevant facts”;

(2) “former counsel must be informed of the allegations and

allowed the opportunity to respond,” and this response should

11

In Balam-Chuc v. Mukasey, the Court of Appeals for

the Ninth Circuit considered the primary issue we must now

address: whether an alien’s right under the Fifth Amendment

to the effective assistance of counsel during removal

proceedings extends to pre-proceeding attorney conduct in

connection with the visa petition process. 547 F.3d 1044,

1050-51 (9th Cir. 2008). In that case, the Court

acknowledged that poor representation during that process

can result in terrible consequences for an alien and his family.

Nonetheless, it held that “the Fifth Amendment simply does

not apply to the preparation and filing of a petition that does

not relate to the fundamental fairness of an ongoing [removal]

proceeding.” Id. at 1051; see also Lara-Torres v. Ashcroft,

383 F.3d 968, 973 (9th Cir. 2004) (noting that “unfortunate

immigration-law advice” prior to a removal proceeding does

not taint the fairness of the removal hearing itself in violation

of the Fifth Amendment), amended by 404 F.3d 1105 (9th

Cir. 2005).

Balam-Chuc, like the Contrerases, sought lawful

permanent residency under 8 U.S.C. § 1255(i) . He argued

that his attorney failed to file properly his visa petition before

§ 1255(i)’s April 30, 2001 deadline, and that this failure

deprived him of due process. 547 F.3d at 1050. The Court

be submitted with the motion; and (3) “if it is asserted that

prior counsel’s handling of the case involved a violation of

ethical or legal responsibilities, the motion should reflect

whether a complaint has been filed with appropriate

disciplinary authorities regarding such representation, and if

not, why not.” See Matter of Lozada, 19 I. & N. Dec. 637,

639 (BIA 1988). The Government concedes that the

Contrerases’ compliance with the Lozada requirements is not

at issue. See Gov. Br. 19 n.5.

12

noted that this deficiency did “not relate to the substance of

an ongoing hearing; in fact, no proceedings had begun at the

time the alleged attorney misconduct took place.” Id. It

rejected Balam-Chuc’s attempt “to cast . . . an expansive and

amorphous Fifth Amendment due process right that

encompasses legal assistance removed from the actual

[removal] process itself.” Id. at 1051 (quoting Lara-Torres,

383 F.3d at 975).

The Contrerases have offered no authority to the

contrary, nor have we found any. They merely claim that the

BIA “erred as a matter of law when it arbitrarily added an

additional requirement” not found in its prior decision in

Lozada or our decision in Fadiga. Pet’rs’ Br. 19. Those

cases, however, did not address alleged ineffectiveness before

removal proceedings begin.

The Fifth Amendment right to effective counsel in

removal proceedings is narrower than the Sixth Amendment

right to effective counsel in criminal proceedings. As we

have recognized, the process that is “due” an individual

facing removal is the process of a fundamentally fair hearing.

See Fadiga, 488 F.3d at 155, 159; Xu Yong Lu, 259 F.3d at

13; see also Hernandez, 238 F.3d at 55; Castaneda-Suarez,

993 F.2d at 144. To be sure, had prior counsel timely

appealed or sought reconsideration of Margarito’s visa

petition denial, then the IJ may have been willing, in an

exercise of her discretion, to continue the removal

proceedings. But while counsel’s inept conduct prior to the

removal proceedings may have resulted poorly for the

Contrerases, it did not compromise the fundamental fairness

of the removal proceedings themselves. The Contrerases

were still able to present arguments and evidence available to

them at the time of the proceedings. Unfortunately, they had

13

no arguments or evidence that would have provided relief

from removal.6

We cannot end our discussion on this point without

further comment on Mella’s representation before the start of

the removal proceedings, even if it is not subject to due

process scrutiny. Our review of the administrative record

reveals instances of not only incompetence but also

exploitation. For example, Mella required $1,000 from

6

In limited circumstances, the BIA is authorized to consider

ineffective assistance claims involving attorney malfeasance

that occurs outside the context of removal proceedings. For

example, in assessing whether an alien has established

extraordinary circumstances that would excuse the untimely

filing of an asylum application under 8 U.S.C.

§ 1158(a)(2)(D), an IJ (and the BIA) are authorized by

regulation to determine whether the alien’s asylum

application was untimely due to ineffective assistance of

counsel. See 8 C.F.R. § 1208.4(a)(5)(iii). Because an alien

may affirmatively file an application for asylum prior to

removal proceedings, see 8 C.F.R. §§ 103.2(a)(7), 208.2,

attorney malfeasance for failing to file timely may occur

before removal proceedings actually begin. Furthermore, the

Attorney General has authorized the BIA, as an exercise of its

discretion to reopen removal proceedings, to consider

ineffective assistance claims that arise after removal

proceedings have been completed. See Matter of Compean,

25 I. & N. Dec. 1, 1-3 (Att’y Gen. 2009). But the Contrerases

have not identified any statutory provision, regulation, or case

law that supports the proposition that an IJ or the BIA is

similarly required to review an ineffective assistance claim

that arises in the context of collateral matters, such as the

denial of a visa petition.

14

Margarito — two weeks’ pay according to his pay stubs at the

time — to file a motion to reconsider that Mella knew or

should have known would be untimely. As noted, when he

met with the Contrerases in January 2008, both the 33-day

window to appeal the visa petition and the 30-day window to

file a motion to reconsider had closed. With no time left on

the clock to challenge the visa petition denial, but with the

Contrerases’ money in hand, Mella sent himself on a fool’s

errand, what his office readily admits was a “last-ditch

effort.”

Furthermore, we are incredulous that Mella promptly

and effectively discussed with the Contrerases and

Margarito’s employer the possibility of appealing the denied

visa petition. Margarito’s employer’s claims that she has

“always been willing to sponsor Margarito Contreras.” But,

according to a letter from his office, Mella did not appeal the

visa petition because Margarito’s employer “pulled out” in

December 2007 and therefore he had “no ability to challenge

assertions in the denial on appeal.” Admittedly, only a

petitioner (Margarito’s employer) may appeal the denial of an

employment-based visa petition on behalf of the petition’s

beneficiary (Margarito). See 8 C.F.R. § 103.3(a)(1)(iii)(B)

(defining an “affected party” as the “person or entity with

legal standing in a proceeding” and excluding from this

definition the “beneficiary of a visa petition”); id. at §

103.3(a)(2)(i) (providing that an “affected party” may appeal

the denial of a visa petition); id. at § 103.3(a)(2)(v)(A)(1)

(requiring rejection of an appeal filed by a person not entitled

to file such an appeal). But employer support is also

necessary to file a motion to reopen or a motion to reconsider.

See 8 C.F.R. § 103.5(a)(1) (allowing only an “affected party”

to seek reopening or reconsideration of a denied visa

petition). The supposed lack of necessary employer support

that stopped Mella from appealing the visa petition denial in

December 2007 did not stop him from filing the motion to

15

reconsider in March 2008. Simply put, Mella’s filing the

motion belies his excuse for not filing an appeal.

The Contrerases deserved better. Mella’s

representation during the visa petition process fell well short

of the decency and professionalism we expect from the

immigration bar. Navigating the legal complexities and

administrative quagmires of our immigration system is

difficult enough even with the benefit of the most zealous

advocacy. As this case painfully demonstrates, attorney

incompetence — whether the result of carelessness or

dishonesty — can make those difficulties insurmountable.

Regrettably, however, because counsel’s substandard

performance occurred before the removal proceedings were

instituted, we are unable to provide a remedy.

B. Claims of Ineffectiveness During Removal

Proceedings

Turning to the Contrerases’ allegations of their former

counsel’s deficiency during the removal proceedings

themselves, we hold that the BIA did not abuse its discretion

in finding that they did not receive ineffective assistance of

counsel.

First, the record does not show that prior counsel

attempted to mislead the IJ into believing that an appeal of the

denied visa petition had been timely filed, or that such an

attempt caused the Contrerases any prejudice. At the first

removal hearing, counsel (whom the IJ found to be woefully

unfamiliar with the Contrerases’ case) incorrectly stated that a

timely appeal of the denied visa petition had been filed. But

when questioned further about the timing, counsel conceded

that she had been mistaken. The IJ was not misled, as her

decision denying the Contrerases’ motion to reopen noted that

16

counsel was unable to establish that any appeal was timely

filed.

Second, competent counsel would not have requested a

third continuance to file a new labor certification application

because, based on the IJ’s previous comments, such a request

would have been futile. Having already granted two

continuances, the IJ stated on the record that — absent

evidence of a timely filed appeal of the visa petition, an

agreement with the DHS, or some other convincing reason —

she would not grant a further continuance. In addition, the IJ

also observed that she would not likely have granted a

continuance to allow Margarito the opportunity to file yet

another labor certification application due to the processing

times needed for such applications. Based on these

statements, prior counsel seems to have acted reasonably

during the removal proceedings by requesting the only form

of relief available to the Contrerases at that point — voluntary

departure.

Our decision in Khan v. Attorney General also

suggests that the IJ’s stated reasons for her refusal to grant

any further continuances were reasonable. 448 F.3d at 233-

36. If “an alien has failed to submit a visa petition, an IJ’s

decision to deny the alien’s continuance request is squarely

within the IJ’s broad discretion, at least absent extraordinary

circumstances . . . .” Id. at 234. An IJ has no obligation to

grant a continuance that would be essentially “indefinite” if

there is “only the speculative possibility that at some point in

the future” the alien’s labor certification application will be

approved. Id. at 235 (internal quotation marks omitted).7 At

7

After the Contrerases’ removal proceedings, the BIA decided

Matter of Rajah, which clarified the factors an IJ should

consider when determining whether good cause exists to

17

the time of the removal proceedings, the possibility of

Margarito obtaining an approved visa petition was

speculative. His employer had not even submitted a new

labor certification application. The speculative possibility

that the Contrerases might have become eligible for relief

from removal, especially in light of our decision in Khan,

further suggests a request for a third continuance would have

been futile and that competent counsel would not have sought

such a continuance.

Finally, contrary to the Contrerases’ suggestion, it is

not reasonably likely that if prior counsel had requested a

continuance (rather than voluntary departure), they would

have been spared the imminent threat of the ten-year bar of

inadmissibility. See 8 U.S.C. § 1182(a)(9)(B)(i)(II) (“An

alien (other than an alien lawfully admitted for permanent

residence) who . . . has been unlawfully present in the United

States for one year or more, and who again seeks admission

within 10 years of the date of such alien’s departure or

removal from the United States, is inadmissible.”). Margarito

and Norma, having entered the United States unlawfully in

1993 and 1998, respectively, acquired more than one year of

unlawful presence well before they were even placed in

removal proceedings. As discussed above, any motion for a

continuance appeared futile. If prior counsel had not

continue removal proceedings to await the deciding of a

pending employment-based visa petition or labor

certification. 25 I. & N. Dec. 127 (BIA 2009). Importantly,

the BIA held that “pendency of a labor certification

[application] generally would not be sufficient to grant a

continuance in the absence of additional persuasive factors,

such as the demonstrated likelihood of its imminent

adjudication or DHS support for the motion.” Id. at 137.

18

requested voluntary departure, then the IJ would likely have

ordered the Contrerases’ removed involuntarily because they

did not, and still do not, have an approved visa petition

making them eligible for relief from removal. Thus, the

Contrerases’ unlawful presence for more than one year and

their ineligibility for any relief, not any ineffectiveness of

counsel, triggered the impending ten-year bar of

inadmissibility.

* * * * *

For these reasons, we deny the petition for review.

19