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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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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EGR a 20
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OP eee MME MIAD ww cc cca sec scscccceees 2
ee m ae
i Ee
ER 8 se
NE EE MESHED 5 cece sccccicseseccvers 3
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

Se I sa sis ig 5 oly pate eo woe et oles Oboe Re
8 a rear era
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es a ac usando ee Ree eRek sees 14
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I oa es snd yea ck CEN eee eee 12
nS ee oti se oe vain wae a he ea Sie oleae ae a z
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i de esa Sedu a eta as oaks baker eee 2
oo ee eres eee arr ry ee 2
i ee ae dae eK ee eae eee es z

‘Miscellaneous:

Board of Immigration Appeals, Dep't of Justice,
Practice Manual (2004) .............. 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

. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0493%3A2. Public record. Not legal advice.