Opposition Brief — Massis v. Holder (No. 08-1392)

2 WD OT 22

No. 08-1392

Jn the Supreme Court of the Gnited States

NIMATALLAH SHAFFIK MASSIS, PETITIONER

V.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

BLENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD FE. KEENER

HOLLY M. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether an alien who conceded before an immi-

gration judge that he is deportable as an aggravated

felon and then presented no challenge regarding deport-

ability during an appeal to the Board of Immigration

Appeals failed to exhaust administrative remedies, as

required by 8 U.S.C. 1252(d)(1), thus precluding judicial

review of his claim of non-deportability.

2. Whether the Fifth Amendment affords an alien a

right to relief based on the ineffective assistance of pri-

vately retained counsel during immigration proceedings.

TABLE OF CONTENTS

age

I NE on ot oud a he oe eee a eee eee 1

ea aed Cone heey a a er ere 1

NN EEE OE Bie Rei Sy gee ot Pe 2

SS ore eine g es be OR eR ETS ae es eee 10

Ee Pe re ee A eae 26

TABLE OF AUTHORITIES

Cases:

Abdelqadar v. Govzales, 413 F.3d 668 (7th Cir. 2005) ...17

Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008),

cert. granted, judgment vacated and remanded,

No. 08-906 (Oct. 5, 2009) ...........000. 9, 21, 22, 23, 24

Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009) ......... 25

Al-Najar v. Mukasey, 515 F.3d 708 (6th Cir. 2008) ..... 18

Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) .......... 24

Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007) ...... 18

Batrez Gradiz v. Gonzales, 490 I°.3d 1206 (10th Cir.

a a ce eo 4a eR OE EE Rae Pa aE 18

Booth v. Caurner, S32 U.S. TAL GOCE) wee ccewacen. 11

Bowles v. Russell, 551 U.S. 205 (2007) ....... 10, 12, 13, 19

Castaneda-Suarez v. INS, 993 F.2d 142 (7th Cir.

SN ae wie a ae Ee Re RCTS ew ee ae eee ees 24

Coleman v. Thompson, 501 U.S. 722 1991) ......... ois oe

Dakane v. United States Att'y Gen., 399 F.3d 1269

(lith Cir. 2004) .. ; 24

Darby v. Cisneros, 509 U.S. 137 (1993) ieee ee

Denko v. INS, 351 F.3d 717 (6th Cir. 2008) ............24

Eberhart v. United States, 546 U.S. 12 (2005) | 15

(ITT)

IV

Cases—-Continued: Page

Fadiga vy. Attorney Gen., 488 F.3d 142 (3d Cir. 2007) ....24

Frango v. Gonzales, 437 F.3d 726 (8th Cir. 2006)

Fong Yue Ting v. United States, 149 U.S. 698 (1893) .... 23

Gonzalez-Silva, In re, 24 1. & N. Dee. 218

er EG xa ee AE a ea CE oe 20

Greenlaw v. United States, 128 S. Ct. 2559 (2008) ...... 15

Griullon v. Mukasey, 509 F.3d 107 (2d Cir. 2007),

cert. denied, 129 S. Ct. 43 (2008) ................... 19

In Ku Kim, In-re, No. A047-413-659, 2009 WL

et Fy 0a PA. PUY Be, ec cece cee cevecesvscadD

INS v. Abudu, 485 U.S. 94 (1988) ...2..2...........3, 26

INS v. Doherty, 502 U.S. 314 (1992) ............. 0006, 26

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) .......... 23

INS ¥. 36 Cor, Gee UB. TAGE) nc hb ceive ese csns DG

Knowles v. Mirzayance, 129 8. Ct. 1411 (2009) ........ 25

Korsunskiy v. Gonzales, 461 F.3d 847 (7th Cir. 2006) ... 18

Lin Zhong v. United States Dep't of Justice,

aie Dn SOP Te Ce eS a os hs vee wow ne ec euees 18

Liuuk v. Wabash R.R., 370 U.S. 626 (1962) .............22

Magala v. Gonzales, 434 F.3d 523 (7th Cir. 2005) ....... 23

Malone, lire, 111. & N. Dec. 730 (B.1.A. 1966) 2.2.2... 19

McKart v. United States, 395 U.S. 185 (1969) . oa

M.L.B. V.5.L.é., 519 U.S. 302 (1996) .. 2. cca: oe:

Mojsilovie v. INS, 156 F.3d 743 (7th Cir. 1998) 2.0.2... 24

Murray v. Carrier, 477 US. 478 (G66)... ccc ccivces + Se

Muers v. Bethlehem Shipbutiding Corp., 303 U.S. 41

2.) SEPIA SIR abt eM a nc tg Pe EP 1]

Negusie Vv. Holder, 129 S. Ct. 1159 (2009) oS

V

Cases—Continued: Page

Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008) ........ 24

Raftyev v. Mukasey, 536 F.3d 853 (8th Cir. 2008) ....... 24

Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) .......25

Roman, In re, 19 1. & N. Dec. 855 (B.1.A. 1988) 2.0.00... 3

Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007) ........ 24

eee We eres te Wicd. BU COUD) 0. wee cee cece 14

Sousa v. INS, 226 F.3d 28 (1st Cir. 2000) ............ 19

Strickland v. Washington, 466 U.S. 668 (1984) ......... 25

Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) ........... 19

Tang v. Ashcroft, 354 F.3d 1192 (10th Cir. 2003) ...... 26

United States v. Broce, 488 U.S. 563 (1989) 2.2.2.2... 13

Weinberger v. Salfi, 422 U.S. 749 (1975) .........6... 1]

Zeru v. Gonzales, 503 F.3d 59 (1st Cir. 2007) ........... 24

Lhong v. United Stutes Dept of Justice, 489 F.3d 126

ee age kik ss cobb eee eeeeeees 14

Constitution, statutes and regulations:

cece ew eee 20, 21, 24

rr rT wt cee ene eres 23, 24

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, Div. ©,

110 Stat. 3009-546:

8 321(a), 110 Stat. 3009-627 ....... Pa Aen Pipe 5

§ 322(a)(2)(A), 110 Stat. 3009-629 .... en

Immigration and Nationality Act, 8 U.S.C

ee Ce kee bes es ssc eee ba aa z

8 U.S.C. 1101(a)(43)

®U)S.C. 1101(a)(43)(F ) (1994) 5

Vi

Statutes and regulations—Continued: Page

RE RR 6 2,5

a 12

& U.S.C. 1182(c) (1994) (§ 212(e)) .... 22... passim

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a 4

8 U.S.C. 1252(aX2NC) (2000) .................66. 4

a 4

ED i foes scecvccvovesececves 4

ES 4

IED cp cce cs cednsdevcdrvesvess passim

rr

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B,

ease, 0, em), LEO tat. G10... .. we ee cee 4

ee ee gy seh vibes cde vnesescesenl 5

ee ap bok s ake Pies ssovv eves cos

EE ere

co 2 OR te aan rere - -

8 C.F.R.:

ry a seb beer de si cone en tnes z

CO EA 3

Regulations—Continued: Page

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8 a rear era

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Laks ala ae and S yhte e ae ee ee ee 2

i de esa Sedu a eta as oaks baker eee 2

oo ee eres eee arr ry ee 2

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‘Miscellaneous:

Board of Immigration Appeals, Dep't of Justice,

Practice Manual (2004) <http://www.usdoj.gov/

eoir/vll/qapracmanual/apptmtn4.htm> .............. 2

Jn the Supreme Court of the Cuited States

No. 08-1392

NIMATAI.LAH SHAFFIK MASSIS, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-20a)

is reported at 549 F.3d 631. The decisions of the Board

of Immigration Appeals (Pet. App. 21a-23a, 25a-30a) and

the immigration judge (Pet. App. 31a-50a, 51a-52a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 9, 2008. On February 23, 2009, the Chief Jus-

tice extended the time within which to file a petition for

a writ of certiorari to and including May 8&8, 2009, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

2

STATEMENT

l. a. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seg., an alien who has been con-

victed of an aggravated felony is subject to removal from

the United States. 8 U.S.C. 1227(a)(2)(A)(iii). As rele-

vant here, the term “aggravated felony” is defined as

including “

Title 18 * * *) for which the term of imprisonment [is]

at least one year.” & U.S.C. 1101(a)(43)(F) (footnote

omitted).

In a removal proceeding conducted by an immigra-

tion judge (lJ), an alien may apply for any relief from

removal for which he considers himself eligible.

8 C.F.R. 1240.1, 1240.11. After a hearing, the IJ issues

either an oral or written decision on the alien’s remov-

ability and eligibility for rehef from removal. 8 U.S.C.

1229a(c)(1)(A); 8 C.F.R. 1240.12(a). If the IJ enters an

order of removal, the statute requires the IJ to “inform

the alien of the right to appeal that decision and of the

consequences for failure to depart under the order of

removal, including civil and criminal penalties.” 8

U.S.C. 1229a(c)(d).

b. The Board of Immigration Appeals (Board) hears

appeals from decisions of IJs. 8&8 C.F.R. 1003.1(b),

1240.15. Reyulations direct that an appeal from an im-

migration judge’s decision shall be taken by filing a no-

tice of appeal directly with the Board within 30 calendar

days after the date of the decision. & C.F.R.

1003.3(a)(1), 1003.38(b). “Briefs in support of or in oppo-

sition to an appeal from a decision of an [IJ] shall be

filed directly with the Board.” & C.F.R. 1008.3(0)(1).

The Board’s practice manual contemplates the possibil-

ity of cross-appeals. See Board of Immigration Appeals,

Dep't of Justice, Practice Manual Ch. 4.7(a)(i) (2004)

a crime of violence (as defined in section 16 of

<http://www.usdoj.gov/eoir/vll/qapracmanual/

apptmtn4.htm>. Regulations, however, specifically pro-

vide that an appeal based on a fact or conclusion of law

conceded at the removal hearing can be summarily dis-

missed. See 8 C.F.R. 10038.1(d)(2)(B); see also /n re Ro-

man, 191. & N. Dec. 855, 856 (B.1.A. 1988) (construing

earlier version of same regulation and finding that hav-

ing “conceded her deportability at the deportation hear

ing,” the alien “cannot contest her deportability on ap-

peal”); In re In Ku Kim, No. A047-413-659, 2009 WL

2370858 (B.1.A. July 22, 2009) (“As the respondent con-

ceded his removability at his hearing before the [IJ], he

cannot contest his removability on appeal.”).

The Board may reopen any proceedings in which it

has previously entered a decision. 8 U.S.C. 1229a(c)(7).

As a general matter, an alien may file only one motion to

reopen, and it must be filed within 90 days after the en-

try of a final order of removal. 8 U.S.C. 1229a(c)(7)(A)

and (C)(i); 8 C.F.R. 1003.2(c)(2). A motion to reopen

proceedings must state the new facts that will be proved

at a hearing if the motion is granted and be supported

by affidavits or other evidentiary material. 8 C.F.R.

1003.2(¢c)(1). “A motion to reopen proceedings shall not

be granted unless it appears to the Board that evidence

sought to be offered is material and was not available

and could not have been discovered or presented at the

former hearing.” /bid. The Board has broad discretion

in adjudicating a motion to reopen, and it may “deny a

motion to reopen even if the party moving has made out

a prima facie case tor relief.” & C.F.R. 1003.2(a); see

INS v. Abudu, 485 U.S. 94, 110 (1988) Canalogizing a

motion to reopen to “a motion for a new trial in a crimi

nal case on the basis of newly discovered evidence, as to

4

which courts have uniformly held that the moving party

bears a heavy burden”).

c. The INA also includes a detailed framework for

judicial review of final orders of removal. A court “may

review a final order of removal only if-——(1) the alien has

exhausted all administrative remedies available to the

alien as of right.” 8 U.S.C. 1252(d). As originally en-

acted in 1996, Section 1252 barred court of appeals juris-

diction to review removal orders entered against certain

classes of criminal aliens, including those convicted of an

aggravated felony. 8 U.S.C. 1252(a)(2)(C) (2000). Asa

result, many criminal aliens filed petitions for habeas

corpus in federal district courts. Congress, however,

eliminated habeas corpus review of final orders of re-

moval in Section 106(a) of the REAL ID Act of 2005,

Pub. L. Nwue-l09-138, Div. B, Tit. I, 119 Stat. 310. Now,

the sole means of obtaining judicial review of a final or-

der of removal is through a petition for review in a court

of appeals. 8 U.S.C. 1252(a)(5). An alien whose criminal

conviction previously operated to preclude judicial re-

view of an order of removal may now obtain “review of

constitutional claims or questions of law” by means of a

petition for review. 8 U.S.C. 1252(a)(2)(D).

2. a. Petitioner, a native and citizen of Jordan, was

admitted to the United States in November 1974 as a

lawful permanent resident. Pet. App. 3a. On February

3, 1995, petitioner was arrested for chasing his wife and

two preschool-age girls with an ax through a residential

neighborhood. /d. at 4a, 28a. At the time, petitioner

was under a court order to avoid contact with his wife

and had repeatedly violated that order. /b¢d. On March

3, 1995, petitioner was charged under Maryland law with

intent to murder, carrying a weapon openly with intent

to injure, criminal contempt, and reckless endanger

5

ment. /bid. On June 6, 1995, petitioner pleaded guilty

to one count of reckless endangerment and one count of

criminal contempt, and was sentenced to a five-year

term of imprisonment. /d. at 4a.

b. On June 28, 1996, the former Immigration and

Naturalization Service (INS)' initiated proceedings

against petitioner, alleging that he was deportable under

8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted

of an aggravated felony, as defined in & U.S.C.

1101(a)(43)(F) (1994) to include a “crime of violence

* * © for which the term of imprisonment imposed (re-

yuardless of any suspension of such imprisonment) is at

least 5 years.”” Pet. App. 4a-5a.

On December 31, 1998, petitioner appeared with

counsel before an IJ, conceded that he was deportable as

an aggravated felon, and sought a discretionary waiver

of deportation under former Section 212(c) of the INA,

8 U.S.C. 1182(c) (1994) (repealed 1996).° Pet. App. 5a.

' On March 1, 2003, the INS was abolished and many of its functions

were transferred to the Department of Homeland Security (DHS). See

6 U.S.C. 251, 271(b), 291.

Later in 1996, Congress reduced the length of the triggering sen-

tence under Section 1101(a)(43)(F) and otherwise amended the pro

vision's phrasing. Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, Div. C, Subtit. B, $$ 321(a),

3$22(a)(2)(A), 110 Stat. 3009-627, 3009-629. The definition now refers to

“a crime of violence * * * for which the term of imprisonment [is] at

least one year.” & U.S.C. 1101(a)(43)(F) (footnote omitted). “Notwith

standing any other provision of law,” the amended definition “applies

regardless of whether the conviction was entered before, on, or after

ithe date of amendment].”” & U.S.C. 1101(a)(43) (final sentence).

Section 212(c) authorized some permanent resident aliens domiciled

inthe United States for seven consecutive years to apply for discretion

ary relief from exclusion, and was generally construed as being

applicable in both deportation and exclusion proceedings. See NS y

6

The IJ concluded that petitioner was deportable, but

ultimately granted petitioner’s application for discre-

tionary relief under Section 212(c) on March 19, 2003.

Id. at 5a, 31a-50a.

c. DHS appealed the IJ’s decision to the Board.

Pet. App. 6a.; Admin. R. 40-60, 77-80 (A.R.). Petitioner,

represented by new counsel, filed a brief in which he

argued that the IJ’s grant of a Section 212(c) waiver was

correct. Pet. App. 6a; A.R. 10-36.

On February 25, 2005, the Board vacated the grant

of Section 212(c) relief. Pet. App. 25a-30a. The Board

explained that “the facts surrounding” petitioner’s at-

tack on his wife, and his “failure to take responsibility

for his actions,” were “so serious” that they justified

denial of any discretionary waiver. /d. at 27a. After

discussing the facts of petitioner’s crime—including evi-

dence that he “would have killed his [wife] had he not

fallen down during the chase”—his mental illness, and

the prospects for psychiatric treatment, the Board con-

cluded that petitioner “has not shown himself to be a

desirable resident of the United States, nor has he dem-

onstrated extraordinary circumstances that might war-

rant relief.” /d. at 27a-29a.

d. On March 25, 2005, petitioner, through his second

counsel, filed a petition for review with the United

States Court of Appeals for the Fourth Circuit, seeking

St. Cyr, 533 U.S. 289, 295 (2001). In 1996, Congress repealed Section

212(¢) and replaeed it with a form of diseretionary relief that is not

available to a criminal alien who has been convicted of an aggravated

felony, id. at 297, but this Court held in St. Cyr that the repeal of

Section 212(c) should not be construed to apply to an alien convicted of

an aggravated felony through a plea agreement at a time when the

conviction would not have rendered the alien ineligible for relief under

Section 212(¢), td. at 314-326.

7

review of the Board’s February 25, 2005 denial of his

application for a Section 212(c) waiver. Pet. App. 6a.

3. a. On May 5, 2005, petitioner, after retaining a

third counsel, filed a petition for a writ of habeas corpus

in the United States District Court for the District of

Maryland, seeking “declaratory and injunctive relief to

enjoin his imminent removal from the United States.”

Pet. App. 6a-7a. On June 27, 2005, the district court

transferred the habeas petition to the court of appeals

pursuant to the REAL ID Act. /d. at 7a.

b. On May 25, 2005, petitioner, through his third

counsel, filed a motion to reconsider and reopen with the

Board, asserting a claim of ineffective assistance by his

first counsel, based upon that counsel’s concession of

petitioner’s deportability in December 1998. Pet. App.

7a; see Supp. A.R. 81-98. Petitioner also argued for the

first time that his Maryland conviction for reckless en-

dangerment did not constitute a “crime of violence” and

thus should not have subjected him to removal proceed-

ings. Pet. App. 7a; see Supp. A.R. 81-98.

On July 26, 2005, the Board denied petitioner’s mo-

tion to reconsider and reopen. Pet. App. 21a-23a. The

Board denied the motion to the extent petitioner re-

quested reconsideration because the request was un-

timely filed. Jd. at 21a. The Board denied petitioner’s

motion to reopen because he had not “file[d] his motion

to reopen within a reasonable period of the alleged inef-

fective assistance.” Jd. at 22a-23a. The Board noted

that petitioner had retained new counsel in April 2004

(against whom he did not assert any claim of ineffective

assistance) and could have filed a “motion to remand

proceedings based on ineffective assistance” of counsel

at any time while his case was on appeal to the Board,

but he had instead waited to raise his ineffective-assis-

8

tance claim “until almost 3 months after [the Board’s]

February 25, 2005 decision” denying his request for Sec-

tion 2}2(c) relief. 7d. at 23a.

ec. On August 19, 2005, petitioner filed a petition for

review with the court of appeals seeking review of the

Board’s July 26, 2005 denial of his motion to reconsider

and reopen. Pet. App. &a.

4. The court of appeals consolidated the two peti-

tions for review (of the Board’s February 2005 and July

2005 decisions) and the habeas petition that had been

transferred from district court. Pet. App. 8a. On De-

cember 9, 2008, the court of appeals denied or dismissed

all three petitions. /d. at la-20a.

a. The court of appeals affirmed the Board’s July

2005 decision denying petitioner’s motion to reopen.

Pet. App. 10a-14a. First, as to the argument that his

first counsel’s concession of deportability at his 1998

immigration hearing was plainly ineffective, the court

concluded that the Board did not abuse its discretion in

rejecting that argument because the state of the law at

the time of petitioner’s hearing supported the Board’s

determination. /d. at hla-12a. The court further con-

cluded that petitioner’s first counsel’s concession was

understandable given counsel’s decision to seek a discre-

tionary waiver under former Section 212(c), which the IJ

granted. 7d. at 13a. Thus, the court concluded that peti-

tioner had not shown that the Board abused its discre-

tion in refusing to allow him to “revisit” his concession

of deportability by asserting an ineffective assistance of

counsel claim. /bid. Second, the court coneluded that

petitioner failed to show that the Board abused its dis-

cretion in denying his motion to reopen and reconsider

because the Board noted that petitioner “chose to solely

respond to the DHS’s appeal” of the IJ’s grant of Sec-

Y

tion 212(c) relief; failed to file a motion to remand pro-

ceedings based on ineffective assistance of counsel while

the cause was pending appeal before the Board; and de-

layed “until almost 3 months after [the Board’s] Febru-

ary 25, 2005 decision to raise his ineffective assistance of

counsel claim.” /bid. (brackets in original). Finally, the

court coneluded that petitioner’s due process claim

based on alleged ineffective assistance of counsel was

foreclosed by its decision in Afanwi v. Mukasey, 526

F.3d 788, 796-799 (4th Cir. 2008), cert. granted, judg-

ment vacated and remanded, No. 08-906 (Oct. 5, 2009),

which it described as holding “that an alien’s ‘counsel’s

actions do not implicate the Fifth Amendment,’ such

that the counsel’s alleged ineffectiveness [in civil re-

moval proceedings] does ‘not deprive [an alien] of due

process.’” Pet. App. 13a-14a (citation omitted).

b. Turning to petitioner’s “seek[ing] to revisit his

original concession of deportability on * * * substan-

tive ground[s] * * *, rather than through the portal of

an ineffective assistance of counsel * * * claim,” the

court of appeals dismissed petitioner’s “claim that he is

not deportable as a convicted aggravated felon * * *

for lack of jurisdiction.” Pet. App. 14a, 20a. Relying

upon its case law and that of other circuits, the court

held that, under 8 U.S.C. 1252(d)(1), petitioner may not

raise an issue to the court that he did not raise previ-

ously before the 1J and the Board and that, therefore,

the court lacked jurisdiction to consider petitioner’s

claim. Pet. App. 14a-17a. The court was not persuaded

by petitioner’s argument that he had no reason to raise

the deportability issue before the Board because DHS

had appealed the separate issue of the IJ’s grant of a

Section £12(c) waiver. /d. at 17a-18a. The court held

that, by coneeding deportability before the IJ, petitioner

10

“declined to raise the [deportability| issue * * * before

the IJ; that he, therefore, failed to exhaust his adminis-

trative remedies; and that the court thus lacked jurisdic-

tion to consider the issue. /bid. Finally, the court held

that, under Bowles v. Russell, 551 U.S. 205 (2007), peti-

tioner “may not rely on a ‘miscarriage of justice’ argu-

ment to revisit his concession of deportability and cir-

cumvent his failure to exhaust administrative remedies.”

Pet. App. 18a-20a. The court held that, because it “may

nol create an equitable exception to [S]lection

1252(d)(1)’s exhaustion requirement,” it lacked jurisdic-

tion to consider the merits of petitioner’s claim that he

had not been convicted of an aggravated felony that ren-

dered him deportable. Jd. at 20a.

ARGUMENT

Petitioner challenges (Pet. 11-29) the court of ap-

peals’ holding that the exhaustion requirement in

8 U.S.C. 1252(d)(1) is mandatory, jurisdictional, and not

subject to judicially created equitable exceptions. That

holding is correct, and it does not directly conflict with

any decision of this Court or of any court of appeals—

especially since the briefs in the court of appeals do not

bear out petitioner’s repeated statements (Pet. 9, 12, 19,

20, 26-27) that the government failed to raise in the

court of appeals petitioner’s concession of deportability

before the IJ and the Board. Further review of the first

question presented is therefore not warranted.

Petitioner also renews his claim (Pet. 30-34) that he

had a constitutional right to effective performance by his

privately retained counsel in removal proceedings. Re-

lying on circuit precedent that has since been vacated on

other grounds, the court of appeals correctly held that

there is no Fifth Amendment right to effective perfor-

11

mance by privately retained counsel in removal proceed-

ings. Because the case law in the courts of appeals on

the constitutional question is still developing, this

Court’s review is unwarranted.

1. a. Exhaustion doctrines generally “provide| ] ‘that

no one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative

remedy has been exhausted.’” McKart v. United States,

395 U.S. 185, 193 (1969) (quoting Myers v. Bethlehem

Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). As this

Court has explained, requiring administrative exhaus-

tion serves a number of important purposes, including

“preventing premature interference with agency pro-

cesses”; aliowing the agency to “function efficiently” and

“correct its own errors”; providing the “parties and the

courts the benefit ef [agency] experience and expertise”;

assuring the development of a record “adequate for judi-

cial review”; and affording the agency an opportunily to

decide whether a claim is “invalid” on other grounds or

whether relief may be granted “under a different section

of the Act.” Weinberger v. Salfi, 422 U.S. 749, 765

(1975); accord McKart, 395 U.S. at 193-194. Where Con-

gress has specified by statute that exhaustion is re-

quired, a court may not “dispens[e]” with that require-

ment based on the court’s own assessment that exhaus-

tion would be “futilfe}].” Salf?, 422 U.S. at 766. The

Court reiterated that point more categorically in Booth

v. Churner, 532 U.S. 731 (2001), explaining that it “will

not read futility or other exceptions into statutory ex-

haustion requirements where Congress has provided

otherwise.” /d. at 741 n.6.

In this ease, Congress has specified in the INA that

judicial review of a final order of removal is contingent

on exhaustion of the administrative remedies “available

12

to the alien as of right.” 8 U.S.C. 1252(d)(1). The statu-

tory framework, which requires an [J to advise an alien

of his “right to appeal” a removal order, 8 U.S.C.

1229a(c)(5), plainly allocates initial appellate review to

the Board and makes such an appeal “available as of

right” within the meaning of the exhaustion mandate in

Section 1252(d)(1). That conclusion is reinforced by

8 U.S.C. 1101(a)(47)(B), which specifies that an IJ’s re-

moval order becomes final only upon affirmance by the

Board or upon expiration of the appeal period if no ap-

peal to the Board is taken, whichever is earlier.

Whether the Board would ultimately rule for the alien

on the merits is irrelevant to whether an appeal to the

Board—the relevant procedural remedy here—is “avail-

able to the alien as of right.” And, consistent with Con-

gress’s directives, Department of Justice regulations

provide that an IJ’s removal order may not be executed

during the appeal period or while review of the order is

pending before the Board. 8 C.F.R. 1003.6(a). Cf. Dar-

by v. Cisneros, 509 U.S. 137, 154 (1993) (concluding that

“where the APA applies, an appeal to ‘superior agency

authority’ is a prerequisite to judicial review only when

expressly required by statute or when an agency rule

requires appeal before review and the administrative

action is made inoperative pending that review’”’).

That statutory mandate of exhaustion serves to vest

exclusive initial appellate jurisdiction in the agency. See

Bowles v. Russell, 551 U.S. 205, 212-213 (2007) (‘“Be-

cause Congress decides whether federal courts can hear

cases at all, it can also determine when, and under what

conditions, federal courts can hear them.’”). Given the

statutory underpinnings of the exhaustion requirement

in removal proceedings, the court of appeals correctly

applied this Court’s decision in Bowles when it con-

13

cluded that the requirement is mandatory and that peti-

tioner’s decision not to exercise his right to challenge his

deportability before the Board precluded the court from

considering that question. Pet. App. 16a-20a. As this

Court recognized in Bowles, Congress has not autho-

rized the federal courts to excuse non-compliance with

statutory prerequisites to judicial review, and such judi-

cially created exceptions “would no doubt detract from

the clarity of the rule.” 551 U.S. at 214.

Against that background, the court of appeals cor-

rectly concluded that it lacked jurisdiction over peti-

tioner’s claim of non-deportability. “A court may review

a final order of removal only if * * * the alien has ex-

hausted all administrative remedies available to the

alien as of right.” 8 U.S.C. 1252(d)(1). As petitioner

implicitly concedes, exhaustion of administrative reme-

dies requires at a minimum that an alien first present

his claim to the IJ and that he then pursue his claim on

appeal to the Board. Petitioner did neither here. See

Pet. 20 (describing 8 U.S.C. 1252(a)(1) as requiring that

an alien “fully proceed before the agency prior to pursu-

ing judicial review”), 21 (acknowledging that several

courts of appeals have held that a court may not enter-

tain a petition for review where an alien failed to pro-

ceed at all before the agency). Rather, petitioner affir-

matively conceded his deportability before the IJ and

then failed to seek to withdraw that concession or other-

wise challenge his deportability when his case was on

appeal to the Board—focusing instead on the question of

whether he was entitled to discretionary relief from re-

moval. Petitioner thereby failed to avail himself of his

prescribed administrative remedies as to any claim of

non-deportability. Cf. United States v. Broce, 488 U.S.

563 (1989) (criminal defendant wh» pleads guilty cannot

14

later contend that the charge did not establish a crime

or that he had a good defense). The court of appeals

correctly concluded that petitioner’s failure to exhaust

administrative remedies barred its review of his claim.

b. Petitioner contends (Pet. 20-26) that there is a

fundamental difference between exhaustion of remedies

and issue exhaustion, and that Section 1252(d)(1) re-

quires only the former. As an initial matter, petitioner’s

characterization of this case as one involving mere issue

exhaustion is itself flawed. Petitioner did not merely fail

to raise the question of his deportability on appeal to the

Board; he affirmatively conceded before the IJ that he

is deportable, seeking only relief from ensuing deporta-

tion under Section 212(c).

In any event, petitioner does not address this Court’s

emphasis that when agency regulations require issue

exhaustion, “courts reviewing agency action regularly

ensure against the bypassing of that requirement by

refusing to consider unexhausted issues.” Sims v. Apfel,

530 U.S. 103, 108 (2000). Thus, “since the BIA’s regula-

tions do require issue exhaustion,” the Second Circuit

has, for example, “long held that issue exhaustion is

mandatory” in proceedings to review a Board decision.

Zhong v. United States Dep’t of Justice, 489 F.3d 126,

131 (2d Cir. 2007) (Calabresi, J., concurring in the denial

of rehearing en bance) (citing 8 C.F.R. 1003.3). More-

over, as this Court has explained, “the rationale for re-

quiring issue exhaustion is at its greatest” in “an ad-

versarial administrative proceeding,” Sims, 530 U.S. at

110, like the one petitioner had before the Board.

Accordingly, even if the exhaustion requirement in

Section 1252(d)(1) were not jurisdictional (in the abso-

lute sense that it could not be waived by the govern-

ment), it would still be mandatory, and thus preclude

15

petitioner’s claim. See Greenlaw v. United States, 128

S. Ct. 2559, 2564-2567 (2008) (declining to decide

whether a statutory requirement that the government

appeal or cross-appeal a criminal sentence is “jurisdic-

tional,” but recognizing no judicial discretion to make

exceptions to that requirement); Hberhart v. United

States, 546 U.S. 12, 18 (2005) (per curiam) (explaining

that, even when a time limit in a procedural rule is not

“jurisdictional,” the court’s duty to apply it is “manda-

tory” when the other party raises an objection).

c. Because a non-jurisdictional requirement can still

be “mandatory” for a court when the other party raises

an objection, this case is a poor vehicle for testing the

“Jurisdictional” nature of the exhaustion requirement in

Section 1252(d)(1).

Petitioner’s efforts to establish that issue exhaustion

is not jurisdictional are ultimately in service of his at-

tempt to show that it can be “waived in certain, well-set-

tled circumstances.” Pet. 9. He claims those circum-

stances are present here because this is “the rare case

* * * where (1) the government has waived its argu-

ment that an alien has not exhausted an issue, (2) that

issue is a purely legal question, and (3) manifest injus-

tice would result from the court’s failure to reach the

issue.” Pet. 26. Although he relies on the concatenation

of all three of those factors more than once (Pet. 9, 12,

26), he places particular emphasis on the government’s

alleged failure to “invoke exhaustion on appeal” (Pet.

20).

In this case, however, it is simply not true that peti-

tioner’s failure to exhaust was waived by the govern-

ment in the court of appeals. To the contrary, in its op-

position in the court of appeals to petitioner’s motion to

16

hold his first petition for review in abeyance, the govern-

ment expressly stated as follows:

The habeas petition, once transferred here, will

still not confer jurisdiction on this Court to review

the ground on which [petitioner] was removed be-

cause he failed to exhaust his administrative reme-

dies with regard to any such challenge (by never

contesting his deportability below). 8&8 U.S.C.

§ 1252(d)(1) (‘A court may review a final order of

removal only if . . . the alien has exhausted all ad-

ministrative remedies available to the alien as of

right.”).

05-1329 Resp. C.A. Mot. to Dismiss and Opp. to Pet’r

Mot. to Hold Case in Abeyance 14 n.5 (filed June 10,

2005) (emphases added). When petitioner later filed his

opening brief in the consolidated proceeding involving

his habeas petition and two petitions for review, he re-

ferred back to that very point, stating: “The Govern-

ment has argued in this case that the merits of [peti-

tioner’s] deportability are not before this Court because

[petitioner] did not properly raise that issue before the

BJA during his initial removal proceedings.” Pet. C.A.

Br. 37. Then, in its own brief in the consolidated pro-

ceeding, the government repeated the substance of the

exhaustion argument that petitioner had already para-

phrased (albeit without citing Section 1252(d)(1)). See

Resp. C.A. Br. 12 (“{[Petitioner] conceded before the LJ

that he was deportable as charged * * * . Thus, it is

wholly improper for [petitioner] to seek to collaterally

attack this concession by implying this Court can di-

rectly review the question of removability in this peti-

tion for review.”).

17

The court of appeals itself never suggested that the

government had waived petitioner’s failure to exhaust

his claim that he was not deportable. To the contrary,

the court said at the beginning of its discussion of

deportability that “[petitioner] does not dispute that he

failed to raise the issue before either the IJ or the

|Board].” Pet. App. 14a. It would, to say the least, be

odd to rely on petitioner’s failure to “dispute” something

if the court thought it had not even been raised by the

government. In addition, when discussing its inability

to create equitable exceptions to the exhaustion require-

ment, the court of appeals specifically discussed excep-

tions for a “miscarriage of justice” or “manifest injus-

tice,” but not any waiver by the government. /d. at 14a,

18a-20a."

d. Because the government did not waive peti-

tioner’s failure to exhaust, there is no direct conflict in

the courts of appeals. Indeed, petitioner’s claims of con-

flict depend almost entirely on the government’s pur-

ported waiver of exhaustion. Petitioner says (Pet. 12)

that the decision below “squarely conflicts with decisions

of the Second and Seventh Circuits,” because those cir-

cuits have held that exhaustion can be waived by the

government. ‘Thus, petitioner describes (Pet. 13) the

Seventh Circuit’s decision in Abdelgadar v. Gonzales,

' The implication that the court of appeals did not perceive the

government to have waived the exhaustion point is strengthened by the

fact that—notwithstanding the statement in petitioner’s opening brief

—petitioner affirmatively argued in his reply brief that the government

had ‘waived any argument that [petitioner] failed to exhaust the issue

of his deportability.” Pet. C.A. Reply 7n.5. Nevertheless, the court of

appeals did not include waiver among the exceptions that it felt con-

strained not to recognize by its characterization of the exhaustion re-

quirement as jurisdictional,

18

413 F.3d 668 (2005), as “[e|mphasizing that the govern-

ment failed to raise exhaustion in its appellate brief,”

and he quotes (Pet. 13) the Seventh Circuit’s statement

in Korsunskiy v. Gonzales, 461 F.3d 847 (2006), that an

agency “may waive or forfeit the exhaustion issue.” /d.

at 849. Petitioner similarly describes the Second Circuit

as holding “that the statutory requirement of issue ex-

haustion is ‘mandatory (and hence waivable)’ but is not

jurisdictional.” Pet. 14 (quoting Lin Zhong v. United

States Dep't of Justice, 480 F.3d 104, 107 (2d Cir. 2007)).

Furthermore, petitioner’s characterization of the

Fourth Circuit as being an outlier “even in the ‘jurisdic-

tional’ circuits,” depends on his conclusion that none of

the other circuits “has actually held that a court of ap-

peals lacks power to entertain a challenge to a removal

order where the government has not argued that the

challenge is barred because it was not properly ex-

hausted before the agency.” Pet. 19 (emphasis omitted).

He characterizes Sixth Circuit cases as recognizing an

exception to the exhaustion requirement when the gov-

ernment does not argue failure to exhaust on appeal.

Pet. 15-16 (discussing Al-Najar v. Mukasey, 515 F.3d

708, 713 n.2 (2008); Badwan v. Gonzales, 494 F.3d 566,

571 (2007)).

The other cases he cites (Pet. 16-18)—from the First,

Kighth, Ninth, and Tenth Circuits—do not establish a

direct conflict cither, since they discussed different po

tential exceptions to the exhaustion requirement without

finding them applicable or even necessarily available.

See Batrez Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir.

2007) (analyzing miscarriage-of-justice exception, but

finding it inapplicable in that case); Frango v. Gonzales,

437 F.3d 726, 728-729 (8th Cir. 2006) (mentioning cases

from non-immigration contexts that recognized excep-

LY

tions to exhaustion requirements, but finding none appli-

cable to the “adversarial” proceedings “before the LJ

and the BIA”); Sun v. Ashcroft, 370 F.8d 932, 942-944

(9th Cir. 2004) (suggesting there may be a futility excep-

tion to Section 1252(d)(1)’s exhaustion requirement, but

finding any such exception “cannot be broader than that

encompassed by the futility exception to prudential ex-

haustion requirements” and thus could not be satisfied

in that ease); Sousa v. INS, 226 F.3d 28, 32 (1st Cir.

2000) (finding it “unnecessary * * * to decide whether,

in a case that threatened a miscarriave of justice, we

could forgive the failure to raise a clearly meritorious

claim in the removal proceedings”). Moreover, almost

all of those decisions preceded this Court’s decision

in Bowles, supra, which caused the Second Circuit

to overrule prior opinions to the extent that they had

recognized a “‘manifest injustice’ exception to [Section]

2152(d)(1)’s exhaustion requirement.” Grullon v. Mu-

kasey, 509 F.3d 107, 115-116 (2007), cert. denied, 129

S. Ct. 43 (2008). The only exception is the Tenth Cir-

cuit’s decision in Batrez Gradiz, which post-dated

Bowles by only six days and did not mention it at all.”

Although petitioner briefly discusses (Pet. 28-29) a miscarriage-of-

justice exception, as the court of appeals explained here (Pet. App. 12a),

petitioner's argument that he is not deportable depends on Supreme

Court and court of appeals cases that postdated the IJ’s 1998 decision

(id. at Sla-H38a) that he was deportable. Cf. /n re Malone, 11 1L& N.

Dee. 730, 731 732 (B.1.A. 1966) (suggesting that collateral challenges

based ona “gross miscarriage of justice” are available in cases in which

deportation was inappropriate “at the time of the original proceeding,”

but are not available on the basis ef “an interpretation of law made

subsequent to the time of the original deportation decision”), Further-

more, because a manifest-injustice exception—to the extent one were

available—would be “equitable” in nature, Grullon, 509 F.3d at 115, it

is surely relevant that petitioner’s criminal conduct, which included the

20

Accordingly, it is not at all clear that petitioner would

have had his claim of non-deportability adjudicated in

any of the other circuits he cites.

e. Finally, petitioner argues (Pet. 28-29) that he did

in fact exhaust his claim, and that the court of appeals

therefore erred in not finding that he exhausted his non-

deportability claim by raising it before the Board in a

motion to reopen. That factbound clatin does not war-

rant further review (but would, if true, obviate any need

to address any of petitioner’s arguments about the legal

nature of the exhaustion requirement). In any event,

petitioner essentially invited any error by claiming in

the court of appeals that he had “timely raised in the

BIA the ineffectiveness claim in a motion to reopen,” not

the underlying question of deportability. Pet. C.A. Br.

37 (emphasis added). The Board rejected that ineffec-

tiveness claim, as did the court of appeals, without need-

ing to address the underlying question of deportability.

Moreover, petitioner could have presented his non-

deportability claim either during the initial appeal be-

fore the Board—which was handled by his second coun-

sel, against whom petitioner has never asserted a claim

of ineffective assistance—or in a motion to remand dur-

ing the pendency of that Board appeal.

2. Petitioner contends (Pet. 30-34) that the conces-

sion of deportability by his first privately retained coun-

sel constituted ineffective assistance that deprived him

of due process in violation of the Fifth Amendment.

Further review of that claim is unwarranted.

violation of a court order to avoid contact with his wife (Pet. App. 28a),

has furnished an independent ground of deportability for such actions

occurring since 1996, see 8 U.S.C. 1227(a(2 Ea); Zn re Gonzalez-

Silva, 24 1. & N. Dee. 218, 220 (B.1.A. 2007).

oi

a. Petitioner “adopts and incorporates by reference

the legal arguments” that were made in the petition for

a writ of certiorari in Afanwi v. Holder, No. 08-906,

which was pending when he filed his own petition. On

October 5, 2009, this Court granted the certiorari peti-

tion in Afanw?, vacated the Fourth Circuit’s judgment,

and remanded “for further consideration in light of the

position asserted by the Solicitor General in her brief for

the respondent filed August 26, 2009.” 08-906 Docket

entry (Oct. 5, 2009). The position asserted by the Solici-

tor General in that brief was that the Fourth Circuit in

Afanwi correctly held that the Fifth Amendment does

not confer a right to have an order of removal set aside

based on ineffective assistance. by privately retained

counsel in immigration proceedings (see Br. in Resp. at

10-12, Afanwi, supra (No. 08-906)), but nevertheless

erred in affirming the Board’s determination in that

case that it lacked jurisdiction to consider in the first

instance whether it should grant administrative relief

for allegedly ineffective assistance of counsel that oc-

curred after entry of a final order of removal (see id. at

14-16).

b. The court of appeals correctly held in this case

that the Fifth Amendment does not confer a right to

effective assistance by privately retained counsel in im-

migration proceedings. Pet. App. 18a-l4a. This Court

has explained that when the government is not constitu-

tionally required to furnish counsel in the relevant pro-

ceedings, the errors of privately retained counsel are not

imputed to the government. See Coleman v. Thompson,

501 U.S. 722, 752-754 (1991). When “(t]here is no consti-

tutional right to an attorney” furnished by the govern-

ment in a particular kind of proceeding, a client “cannot

claim constitutionally ineffective assistance of counsel in

22

such proceedings”; in that situation, the attorney per-

forms in a private capacity as the client’s agent, not a

state actor, and the client therefore must “‘bear the risk

of attorney error.’” Jd. at 752-753 (quoting Murray v.

Carrier, 477 U.S. 478, 488 (1986)). In “our system of

representative litigation . . . each party is deemed

bound by the acts of his lawyer-agent.” /d. at 753 (quot-

ing Link v. Wabash R.R., 370 U.S. 626, 634 (1962)).

There is no constitutional right to appointed counsel

in immigration proceedings. Indeed, while Congress has

recognized the “privilege” of being represented by coun-

sel of the alien’s choice, it has expressly provided that

such representation shall be “at no expense to the Gov-

ernment.” & U.S.C. 1229a(b)(4)(A), 1362; ef. 28 U.S.C.

1654 (parallel provision providing that a party may ap-

pear through counsel in any court of the United States).

Accordingly, when an alien has invoked that statutory

privilege and retained a lawyer to represent him in re-

moval proceedings or in filing a petition for review, coun-

sel’s actions are not those of the government, but are

instead attributed to the client.

Petitioner incorporates (Pet. 31) the argument from

the Afanwi petition that the “state action” that is

needed to find a due process violation in this context

arises when the government relies on the removal order

at the end of the proceeding. See Pet. at 26, Afanwi,

supra (No. 08-906). But that contention proves too

much, because it would preclude the government from

relying on any civil court order without exposing itself

to the risk of collateral litigation about asserted mal-

practice on the part of opposing counsel. Similarly, the

incorporated attempt (see id. at 19-20) to distinguish

removal proceedings from other civil litigation also fails.

The Afanwi petition argued that, because a removal

23

proceeding threatens to impose such a great loss on an

alien, it is “barely distinguishable from criminal condem-

nation” and thus triggers a Fifth Amendment right to

the effective assistance of counsel analogous to that

available in the criminal context. /d. at 19 (quoting

M.L.B.v. S.L.J.,519 U.S. 102, 119 (1996)). This Court,

however, has resisted calls to view immigration proceed-

ings as equivalent to criminal trials. See 7NS v. Lopez-

Mendoza, 468 U.S. 1032, 1038 (1984) (“Consistent with

the civil nature of the [immigration | proceeding, various

protections that apply in the context of a criminal trial

do not apply in a deportation hearing.”); see also

Negusie v. Holder, 129 S. Ct. 1159, 1169 (2009) (Scalia,

J., concurring) (“This Court has long understood that an

‘order of deportation is not a punishment for crime.’”)

(quoting Fong Yue Ting v. United States, 149 U.S. 698,

730 (1893)). And if it were the case that immigration

proceedings should be treated like criminal proceedings

with respect to issues of iegal representation, the Con-

stitution would require the government to furnish coun-

sel to those facing removal proceedings. But there is no

such constitutional requirement, and petitioner does not

contend otherwise. In the absence of any requirement

of that kind, claims like petitioner’s—which concern only

privately retained counsel—have no apparent basis.

ce. Petitioner correctly explains (Pet. 30-31) that

there is disagreement in the courts of appeals about

whether aliens in immigration proceedings have a Due

Process Clause entitlement to effective performance by

their privately retained counsel. The Seventh Circuit

and the Eighth Circuit have held there is no such consti-

tutional right. See Magala v. Gonzales, 434 F.3d 5238,

24

525-526 (7th Cir. 2005);° Rafiyev v. Mukasey, 536 F.3d

853, 861 (Sth Cir. 2008). So did the Fourth Circuit in its

recently vacated opinion in Afanwi. 526 F.3d at 796-799.

By contrast, a number of other circuits have suggested

or held that the Due Process Clause creates a right to

assistance by counsel that is sufficiently effective to pre-

vent removal proceedings from being fundamentally

unfair. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.

2007); Aris v. Mukasey, 517 F.3d 595, 600-601 (2d Cir.

2008); Fadiga v. Attorney Gen., 488 F.3d 142, 155 (3d

Cir. 2007); Denko v. INS, 351 F.3d 717, 723-724 (6th Cir.

2003); Nehkaud v. Mukasey, 5385 F.3d 962, 967 (Sth Cir.

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

2003); Dukanec v. United States Att’y Gen., 399 F.3d

1269, 1273-1274 (11th Cir. 2005).

Notwithstanding that disagreement among the

courts of appeals, this Court should not resolve the con-

stitutional question at this time. Jurisprudence on the

issue is still developing in the courts of appeals. Not-

withstanding the trend of the earlier decisions, the

Fourth and Eighth Circuits decided last year that there

is no constitutional entitlement. See Rafiyev, 5386 F.3d

at. 861; Afanwi, 526 F.8d at 796-799. And a recent Ninth

Circuit decision “assume[d]” without deciding that aliens

have “a constitutional right to the assistance of counsel

° As petitioner notes (Pet. 31 n.14), other Seventh Circuit decisions

do contemplate that counsel in immigration proceedings “may be so

ineffective as to have impinged upon the fundamental fairness of the

hearing in violation of the fifth amendment due process clause.” Mojs1-

lovic v. INS, 156 F.3d 743, 748 (1998) (quoting Castuneda-Suarez v.

INS, 993 F.2d 142, 144 (7th Cir. 1993)). Petitioner also quotes (Pet. 31

n.14) the passing reference tothe Fifth Amendment in Sanchez v. Ke?s-

ler, 505 F.3d 641, 647 (7th Cir. 2007), but the court's holding there was

that the alien “did not have the fair hearing to which the cneneigration

statutes entitle her.” /d. at 649 (emphasis added).

25

in immigration proceedings.” Alcala v. Holder, 563 F.3d

1009, 1015 n.11 (2009).

d. In any event, resolution of the constitutional

question here would not aid petitioner, because his first

counsel was not ineffective. As the court of appeals con-

cluded, the state of the law at the time of petitioner’s

1998 deportation hearing supported his counscel’s deci-

sion to concede petitioner’s deportability. Pet. App. 1la-

13a. That decision was thus not unreasonable. /d. at

12a-138a. Moreover, as the court of appeals noted (id. at

13a), “{sluch a concession is particularly understandable

in light of counsel’s decision” to apply for a Section

212(c) waiver (an application that met with success be-

fore the IJ). “(Strategic choices made after thorough

investigation of law and facts relevant to plausible op-

tions are virtually unchallengeable.” Knowles v. Mir-

zayance, 1298. Ct. 1411, 1420 (2009) (brackets in origi-

nal) (quoting Strickland v. Washington, 466 U.S. 668,

690 (1984)).

In addition, petitioner failed to exercise due diligence

in pursuing his claim, which is a prerequisite for seeking

reopening on the basis of a claim of ineffective assis-

tance. See,e.g., Rashid v. Mukasey, 533 F.3d 127, 132

(2d Cir. 2008) (explaining that an alien claiming ineffec-

tive assistance of counsel “is required to exercise due

diligence both before and after he has or should have

discovered ineffective assistance of counsel”). Rather

than raising a claim of ineffective assistance while his

case was on direct appeal to the Board—and while he

was being represented by new counsel whom he does not

allege to have been ineffective—petitioner delayed

bringing any such claim until almost three months after

the Board had already reversed the grant of Section

212(c) relief. Pet. App. 13a, 22a-23a. To countenance

26

petitioner’s decision not to claim ineffective assistance

during his original proceedings would reward delay in a

context where “every delay works to [his] advantage.”

INS v. Doherty, 502 U.S. 314, 323 (1992); see INS v.

Abudu, 485 U.S. 94, 108 (1988) (“Granting such motions

too freely will permit endless delay of deportation.”).

Because the court of appeals properly found that the

Board did not abuse its discretion in denying petitioner’s

motion to reopen (Pet. App. 13a), resolution of the con-

stitutional question is unnecessary and would not alter

the outcome of the proceedings below. turther review

of petitioner’s constitutional claim is therefore unwar-

ranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

DONALD E. KEENER

HOLLY M. SMITH

Attorneys

OCTOBER 2009