Singh v. Napolitano

McKEOWN, Circuit Judge,

Dissenting:

I respectfully dissent. The heart of Singh’s claim is that his counsel failed to notify him of the final decision of the Board of Immigration Appeals (“BIA”) and failed to preserve his right to judicial review by the Ninth Circuit. The question is whether Singh was required to exhaust this claim at the BIA before filing his habeas corpus petition in federal court. I would hold that he was not required to do so — at the time Singh filed his habeas petition, there was no clear administrative option to exhaust.

The majority reaches the opposite conclusion by refusing to take the BIA at its word and relying instead on scattered dicta from our precedents. Rather than trying to read between the lines as to BIA practice or policy, we remanded this petition to the BIA so that the BIA could tell us whether Singh had the option to file a motion to reopen in order to pursue his claim. The BIA explained on remand that it was uncertain at best whether a motion to reopen was available to Singh to raise his ineffective assistance claim at the time he filed his habeas petition. By requiring that Singh seek reopening nonetheless, the majority holds Singh responsible for exhausting an administrative remedy that the BIA itself acknowledges may not even have existed. The majority’s retroactive application of the Attorney General’s holding in Matter of Compean, 25 I. & N. Dec. 1, 3 (A.G.2009) — that the BIA has jurisdiction over such claims — does not help matters. If anything, the majority’s approach highlights the formerly confused state of the law and the unfairness of requiring exhaustion of Singh.

The questions of exhaustion and access to relief through a motion to reopen are not inconsequential nor are they abstract procedural issues. Time and again we see under-representation and poor quality of representation in immigration proceedings. Time and again we see cases where petitioners have retained counsel who failed to file a timely notice of appeal.

These unfortunate cases represent the classic “good news, bad news” scenario: the good news is that the petitioner had a lawyer; the bad news is that the petitioner had a lawyer. The positive note is that individuals facing the potentially dire consequences of deportation managed to retain counsel to help them navigate the complicated U.S. immigration legal system, but the tragic consequence and the bad news is that some of these lawyers fail to conform to even the most minimal standards of professional competence. Highlighting the unprofessional conduct of these lawyers is not meant to denigrate in any way the many extraordinary immigration lawyers who practice before us. Rather, this discussion underscores the importance of having a meaningful remedy when a lawyer misses an appeal deadline through no fault of the client.

We remanded this case to the BIA to clarify the predicate question to the dis *904 trict court’s holding on exhaustion: namely, whether the BIA even had jurisdiction in the first place to entertain the claim Singh sought to raise on habeas. We also asked the BIA to address the application of the Attorney General’s intervening decision in Compean, 25 I. & N. Dec. at 3 , that the BIA may hear claims of ineffective assistance based on counsel’s conduct after entry of a final order of removal. Singh v. Napolitano, 577 F.3d 988, 988-89 (9th Cir. 2009). Notably, Compean expressly “[left] it to the Board to determine the scope of [its] discretion” over such claims. 25 I. & N. Dec. at 3 .

The Board’s response on remand, although qualified, 1 counsels that it is unreasonable to hold Singh to an exhaustion requirement here. Most importantly, the Board confirmed that its jurisdiction over ineffective assistance claims concerning counsel’s conduct after entry of a removal order was unclear at the time Singh filed his habeas petition. Thus, the Board could not determine with certainty whether it would have adjudicated Singh’s claim on a motion to reopen. As the Board explained:

During the relevant period, the Board had not resolved in a published decision whether its discretion to reopen proceedings included the power to consider claims of ineffective assistance of counsel based on conduct of counsel after an administratively final order had been entered and the Board had issued different decisions on this issue. Thus, we cannot state definitively how a motion raising such a claim would have been adjudicated in the absence of a motion actually having been filed by the applicant.

In re Singh, A 071 789 054, at *2 (BIA Apr. 30, 2010) (citations omitted).

The BIA’s reference to its “different decisions” is something of a euphemism. As noted by the Attorney General and Fourth Circuit, the BIA’s position on this issue during the relevant time period was frankly contradictory. See Compean, 25 I. & N. Dec. at 3 ; Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 , 740 (A.G.2009) (noting that “the Board has not spoken consistently on the question of when deficient performance must occur to permit reopening”); Afanwi v. Mukasey, 526 F.3d 788, 795-96 (4th Cir.2008) (noting that the Board “has issued contradictory opinions on the subject” and citing cases). As a result, the Attorney General, in the first and second Compean decisions, sought to clean up the Board’s jurisdictional mess by ruling, in definitive terms, that the Board had jurisdiction to hear such claims on a motion to reopen. Compean, 25 I. & N. Dec. at 3 ; Compean, 24 I. & N. Dec. at 739-41. Here, however, the Board declined on remand to address whether Compean applies retroactively to Singh’s case or, if it did, whether the Board’s jurisdiction under Compean , extended to Singh’s claim. In re Singh, A 071 789 054, at *2.

At bottom, the BIA’s answer to our question regarding its jurisdiction thus seems to be “we can’t be sure.” 2 If the *905 BIA is uncertain, then surely it is unreasonable to impute certainty to Singh. In my view, the BIA’s jurisdiction over Singh’s claim was not sufficiently clear such that he can be held responsible for raising his claim on a motion to reopen. See Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir.2004) (noting that exhaustion may be waived “where administrative remedies are inadequate or not efficacious”) (internal quotation marks omitted). The Board has explained that it simply cannot know whether it had the authority to hear Singh’s claim because it took no principled position on the issue during the relevant time period. It is therefore totally up in the air whether the remedy that Singh was putatively required to exhaust even existed.

Although the majority purports to defer to the agency’s interpretation of its own jurisdiction, it ignores the BIA when it tells us that it can’t know whether it would have even heard Singh’s claim. The majority’s approach effectively requires that individuals like Singh fight threshold battles over jurisdiction and pursue remedies whose existence is in doubt in order to exhaust their claims. But that is not the law. Rather, habeas petitioners are prudentially required to exhaust only “available ” administrative remedies- — not remedies whose existence is disputed. See Castro-Cortez v. INS, 239 F.3d 1037 , 1047 (9th Cir.2001) (emphasis added), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 , 126 S.Ct. 2422 , 165 L.Ed.2d 323 (2006).

The majority’s citation of our “precedent” on this issue is also unavailing. As the majority suggests, our previous statements regarding the availability of motions to reopen were at best “inessential dicta.” See Lata v. INS, 204 F.3d 1241, 1245-46 (9th Cir.2000); Dearinger ex rel, Volkova v. Reno, 232 F.3d 1042 , 1044 n. 4 (9th Cir.2000). 3 Although one might have preferred that the BIA would have adhered to our dicta on its jurisdiction, rejected these statements in a reasoned decision, or, indeed, taken any coherent position on this issue, one thing is certain: in the face of Lata and Dearinger, the fate of Singh’s claim at the Board remained uncertain. The Board itself has told us so.

This lack of clarity makes .the retroactive application of Compean inappropriate. In applying Compean retroactively, the majority acknowledges the murky state of affairs at the Board during the relevant time period. But the majority fails to appreciate that this very murkiness makes Compean’s application to this case impermissible. Because the BIA’s jurisdiction was hitherto uncertain, the retroactive application of Compean stands to “impose [on Singh] new duties with respect to transactions” already completed and conflicts with “[elemental considerations of fairness dictating] that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 280 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994). In Compean itself, the Attorney General explained that, prior to the Attorney General’s first Compean decision in 2008, the Board had not resolved the issue of its jurisdiction and that it was therefore necessary to decide this issue in definitive terms. 25 I. & N. Dec. at 3 . Similarly, the Board has told us in *906 this case that it took contradictory positions on its jurisdiction and cannot “state definitively” whether it would have heard Singh’s claim and that Compean has since resolved this issue. In re Singh, A 071 789 054, at *2-3. I am hard-pressed to imagine a clearer statement of the jurisdictional fog that existed at the time Singh came to seek habeas relief. Surely there was no way for Singh to “know what the law [was] and to conform [his] conduct accordingly.” Landgraf, 511 U.S. at 265 , 114 S.Ct. 1483 , if the agency itself had no firm position. The lack of clarity regarding the remedies available to Singh at the time he filed his petition makes the imposition of an exhaustion requirement on him now unjustified. We should not see light where none existed, nor should we project it retrospectively. 4

In view of the BIA’s response to us, I would reverse the district court’s dismissal of Singh’s habeas petition for lack of exhaustion and remand for a ruling on the merits of his ineffective assistance claim. This resolution follows from the jurisdictional murkiness that existed when Singh filed in district court. The only avenue this remedy provides is an opportunity, not a guarantee, to pursue a claim forfeited by a lawyer who failed to filed a timely notice of appeal.

. The Board emphasized that because Singh never filed a motion to reopen, its opinion was "necessarily theoretical” and that it could not "state with certainty how any hypothetical motion would have been adjudicated had such a motion been filed.” In re Singh, A 071 789 054, at *2 (BIA Apr. 30, 2010).

. The BIA also noted, incoherently, that the "pertinent regulations” provided the BIA with “jurisdiction to hear [Singh's] ineffective assistance of counsel claim if one had been advanced in a motion.” In re Singh, A 071 789 054, at *2 (citing 8 C.F.R. § 1003.2 (a)). I presume that the BIA means to say that despite its general authority to hear ineffective assistance claims on a motion to reopen, its jurisdiction over Singh's claim was unclear.

. In Lata , we assumed, without analysis, that the petitioner could have raised her ineffective assistance claim on a motion to reopen and suggested that she was required to exhaust such remedies, but held that, in any event, she failed to show prejudice from counsel's conduct. Lata, 204 F.3d at 1245-46 . In Dearinger, we cited Lata for the proposition that a motion to reopen was available, but the petitioner’s failure to exhaust it "[did] not bar this court from hearing the claim.” Dearinger, 232 F.3d at 1044 n. 4.

. As an aside, I note that, Compean notwithstanding, it is still unclear that the Board will afford Singh a remedy. Singh has been removed from the United States. Although we have held that Singh is nonetheless entitled by regulation to a post-departure motion to reopen, see Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir.2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir.2007), the BIA has rejected our analysis and held that it lacks authority to reopen proceedings once a non-citizen has left the United States after the completion of removal proceedings. Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 650-52 (BIA 2008) (construing 8 C.F.R. § 1003.2 (d)). The BIA has expressly "decline[d] to follow [Lin and Reynoso-Cisneros ] even within the Ninth Circuit." Id. at 652 (emphasis added).