Georcely v. Ashcroft , 375 F.3d 45 ( 2004 )

United States Court of Appeals
For the First Circuit
No. 03-1922
DIEUDONNA GEORCELY,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
David Iverson on brief for petitioner.
Michelle R. Thresher, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, Department of Justice, and
Linda S. Wendtland, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
July 12, 2004
BOUDIN, Chief Judge. Dieudonna Georcely, a citizen of
Haiti, arrived in the United States Virgin Islands on or about
January 25, 2002. In January 2002, the Immigration and
Naturalization Service (“INS”), as it was then named, charged
Georcely with removability under 8 U.S.C. § 1182(a)(6)(A)(i) (2000)
as an alien who had arrived in the United States without lawful
authority. Georcely conceded removability but said that he
intended to apply for asylum, withholding of removal, and relief
under the Convention Against Torture.1
On or about March 15, 2002, the immigration judge set a
hearing to be held in St. Thomas, the Virgin Islands, on April 29,
2002. Georcely had by then apparently relocated to Boca Raton,
Florida, to stay with a cousin. On April 11, 2002, his lawyer
mailed to the immigration judge a motion to change venue to Miami,
Florida. The day before the scheduled hearing Georcely's counsel
called the immigration court and was informed that the court had
not yet received the motion.
Neither Georcely nor his counsel appeared at the April
29, 2002, hearing. As is permitted by the statute, the immigration
1
Asylum and withholding of removal are both administrative
measures, with somewhat different incidents, that can be invoked by
an alien who is threatened with harm. See 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1), 1231(b)(3)(A) (2000); 8 C.F.R. §§
208.13(b), 208.16 (2004); see also Mekhoukh v. Ashcroft, 358 F.3d
118, 130 (1st Cir. 2004).
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judge conducted the hearing in absentia, 8 U.S.C. § 1229a(b)(5)(A)
(2000), and on that same day ordered Georcely removed to Haiti.
On June 25, 2002, Georcely's counsel filed a motion to
reopen and change venue claiming that Georcely "in good faith
believed that a change of venue to the Miami District, where he was
residing, would be or had been granted." The apparent delay in the
mail and failure of the immigration court to approve the transfer
were, he asserted, events "beyond the knowledge much less control
of the alien" and supported a finding of “exceptional
circumstances" justifying relief. See 8 U.S.C. § 1229a(b)(5)(C),
(e)(1) (2000).
The INS opposed the request to reopen and on July 18,
2002, the immigration judge denied Georcely's motion. The judge
said that Georcely's attorney had "filed many motions for reopening
claiming the same situation," that neither an alien nor his counsel
were entitled to assume that a motion to change venue will be
granted, and that Georcely's counsel was "well aware" that the
motion had not been granted because he had called the court the day
before and was told the motion had not arrived.
On August 16, 2002, Georcely filed a motion to
reconsider. He said it was reasonable for him to believe that the
motion would be granted because at an earlier bond reduction
hearing for Georcely, the immigration judge had inquired of the INS
whether it would oppose a change in venue to the Miami district if
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the petitioner so requested, and the INS attorney allegedly said
she would have no objection. Georcely's counsel also argued that
it was reasonable for him to think that his mailed motion would
arrive within 5 to 7 days--well within the 18 days before the
hearing.
Georcely's counsel stated that his alien client "had
inquired repeatedly” as to whether the motion to change venue had
been sent and was told that it had been. Accordingly, Georcely
“was unaware” that the motion had not been received or granted and
that he had not been excused from appearing in St. Thomas. Even if
Georcely had known that he was not excused, said counsel, Georcely
could not have arrived in St. Thomas “on one day's notice."
Finally, Georcely’s counsel cited Matter of Lozada, 91 I.
& N. Dec. 637 (BIA 1988), as holding that “ineffective assistance
of counsel is another ground for finding of exceptional
circumstances.” He described as “analogous” another case (Matter
of Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996)), where relief
was granted because counsel as a "tactic of delay” deliberately
misinformed the respondent that he did not have to appear. Counsel
continued:
Lozada required that a bar complaint be filed
in order to claim ineffective assistance of
counsel; however, [Esposito v. INS, 987 F.2d
108, 110-11 (2d Cir. 1993) and Figueroa v.
INS, 886 F.2d 76 (4th Cir. 1989)] hold that
ineffective assistance of counsel can be
established without such complaint being made.
Obviously, undersigned is less than
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comfortable making a self-denunciation to the
bar, but will do so if the Court so requires.
The immigration judge denied the motion to reconsider,
saying that this was the fifth time the court had to confront
counsel’s “way of representing clients before this Court” and that
the court "will not tolerate any longer this counsel's way of
representing clients before this Court”; that lawyers who file
motions have to take account of the mails; and that “counsel was
less than diligent in this and all the other cases where he brings
up the same shaky excuses.”
Georcely's counsel then filed an appeal to the Board of
Immigration Appeals ("BIA"), repeating earlier arguments and adding
that Georcely, "unemployed and indigent, would not have been able
to afford a ticket to go to St. Thomas in any event." The BIA
denied the appeal, saying in substance that the exceptional
circumstances test was intended for compelling matters (e.g., a
serious illness preventing attendance) and did not include an
alien's voluntary absence from a scheduled hearing.
Georcely now appeals to this court. At the threshold,
we face an issue of venue. Shortly before the scheduled oral
argument, Georcely's counsel moved to submit the case without
argument (a motion we granted), observing in passing that the case
arose in the Virgin Islands and that the Third Circuit customarily
had jurisdiction over cases arising in the Virgin Islands. See 28
U.S.C. § 1291 (2000); 48 U.S.C. § 1613a(c) (2000); Government of
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Virgin Islands v. Rivera, 333 F.3d 143, 146 (3d Cir. 2003).
Construing this as a motion to change venue, the government
responded, saying that it
agree[d] with the Petitioner that because the
hearing during which the Petitioner was
ordered removed in absentia took place in the
Virgin Islands, this case is not properly
before this Court, and should be transferred
to the Third Circuit.
The applicable statute for review of INS decisions, 8
U.S.C. § 1252(b)(2) (2000), provides (as to “venue and forms”) that
“[t]he petition for review shall be filed with the court of appeals
for the judicial circuit in which the immigration judge completed
the proceedings." The question posed by this language--actually a
double question of some difficulty--can be understood only against
the background of the geographic operations of the immigration
court in the Caribbean.
It appears from the information available to us that the
immigration court responsible for the present case is based in
Guaynabo, Puerto Rico, that it has jurisdiction over Puerto Rico,
St. Thomas and St. Croix (the latter two being U.S. Virgin
Islands), and that the immigration judge based in Guaynabo holds in
person hearings in the Virgin Islands as well as telephonic
hearings with St. Croix.2 In our case--perhaps in all such cases--
2
See United States Department of Justice, Guaynabo, PR
Immigration Court - Frequently Asked Questions, at
http://www.usdoj.gov/eoir/sibpages/saj/faq.htm (last visited May
25, 2004).
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stamps on the documents indicate that filings by counsel with the
immigration court were sent to and docketed in Guaynabo.
Here, the immigration judge conducted the in absentia
hearing that resulted in the removal order in St. Thomas; but there
is a reasonable likelihood that the order was officially filed and
docketed at the headquarters in Guaynabo; admittedly, the record is
unclear on this point.3 If the removal order "completed" the
proceedings, the question posed would be whether the completion
occurred in the Third Circuit where the ruling was made (St.
Thomas) or the First Circuit (Guaynabo) where we think that the
order was officially filed and docketed.
If the order was officially filed and docketed in
Guaynabo, the most straightforward reading of the language of
section 1252(b)(2) would probably lead us to conclude that the
removal proceedings were completed in Guaynabo (assuming that they
were completed by the removal order rather than by the later denial
of the motion to reopen). This is so because a judicial order is
normally effective when filed and docketed, see United States v.
Fiorelli, 337 F.3d 282, 287 (3d Cir. 2003); Willhauck v. Halpin,
953 F.2d 689, 701 (1st Cir. 1991); 11 Wright, Miller, and Kane,
3
Mysteriously the removal order itself has a typed letterhead
and, after the legend "Immigration Court," there follows on a new
line, "St. Thomas, Virgin Islands." Whether this latter reference
is merely to the site of the hearing or whether there is some
arrangement for filing and docketing in St. Thomas remains
unexplained.
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Federal Practice and Procedure § 2785 (2d ed. 1995 & Supp. 2004),
although exceptions exist. As it happens, the appeal in this case
was originally filed in the Eleventh Circuit, presumably because
counsel hoped to associate it with the Miami office of the INS.
When the INS then moved for a transfer to this circuit, a motion
not opposed by Georcely, the INS said that “the immigration judge
completed proceedings in San Juan, Puerto Rico.”
This view that the place of filing and docketing controls
must be tentative. The statutory language is so far from
conclusive, see Ramos v. Ashcroft, No. 03-4050, 2004 U.S. App.
Lexis 11692, at *2-*3 (7th Cir. June 15, 2004), that absent
legislative history, policy concerns would matter if they weighed
heavily on either side. Further facts might affect the outcome
(e.g., perhaps the removal order for some reason was effective when
announced). And, most important, a definitive ruling is
unnecessary here because--as we will see--the venue issue has been
forfeited.
In the interest of getting issues on the table, a further
complication should be mentioned. Even if the removal proceedings
might otherwise be deemed to have been completed in St. Thomas
(contrary to our tentative assessment), the removal order itself
was followed by a motion to reopen, later denied without an oral
hearing. Both the motion and the order denying it were filed and
docketed in Guaynabo. See also 8 C.F.R. § 1003.31(a) (2004) ("All
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documents and applications that are to be considered in a
proceeding before an Immigration Judge must be filed with the
Immigration Court having administrative control over the Record of
Proceeding.") In such a case, does Guaynabo thereby become the
place of completion?
On this issue, the government argues that the place where
the immigration judge "completed" the proceedings is the place
where the immigration judge issued a final order of removal
"notwithstanding the fact that [an] alien subsequently files a
motion to reopen or reconsider, except when the Judge grants the
Petitioner's motion and reopens proceedings." The government reads
Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002), as suggesting an
opposite reading of the statute but regards it as mistaken.
In all events, we need not resolve such questions. The
challenge is to venue, not jurisdiction; the statute says so, as
does Nwaokolo, 314 F.3d at 306. Objections to venue are normally
waived unless asserted in timely fashion. 28 U.S.C. § 1406(b)
(2000); W.A. Stackpole Motor Transp., Inc. v. Malden Spinning &
Dyeing Co., 263 F.2d 47, 50 (1st Cir. 1958); 15 Wright, Miller &
Cooper, Federal Practice and Procedure § 3829 (2d ed. 1986).
Although section 1406(b) explicitly requires a “timely” objection
in district court proceedings, Nwaokolo, 314 F.3d at 306, found the
same requirement implicitly applicable to immigration appeals, as
do we.
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Venue requirements are normally for the convenience of
the parties and, if the parties do not object, ordinarily there is
no policy objection to proceeding in any court with jurisdiction.
Here, the government sought, and Georcely did not contest, the
transfer to this circuit as the appropriate venue--and certainly
that was a colorable contention. Any contrary suggestion,
belatedly made on the eve of a scheduled argument, is forfeited and
need not be considered.
No one circuit can speak definitively as to when the
proceedings are “completed,” and yet uniform rules are highly
desirable for both the courts and the litigants. Perhaps INS
regulations would help toward a solution, see Ramos v. Ashcroft,
supra, 2004 U.S. App. Lexis 11692, at *2 (suggesting that course);
Congress can certainly provide one. Copies of this decision will
be sent to the appropriate congressional authorities and, in this
case, to the Attorney General.
Turning to the merits, we begin with the statutory
framework. When the BIA issues its own opinion, we review the
Board's decision and not the immigration judge's. Albathani v.
INS, 318 F.3d 365, 373 (1st Cir. 2003). The statute governing
judicial review of in absentia removal orders confines review to
certain limited issues but among them is "the reasons for the
alien's not attending the proceeding." 8 U.S.C. § 1229a(b)(5)(D).
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The standard of review ordinarily varies with the nature of the
issue, Bolton v. Taylor, 367 F.3d 5, 7-8 & n.1 (1st Cir. 2004).
An order for removal entered in absentia may be rescinded
"upon a motion to reopen filed within 180 days after the date of
the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances." 8 U.S.C. §
1229a(b)(5)(C). The statute says that this means “exceptional
circumstances (such as serious illness of the alien or serious
illness or death of the spouse, child, or parent of the alien, but
not including less compelling circumstances) beyond the control of
the alien." Id. § 1229a(e)(1).
It appears that Georcely knew that a hearing had been set
in St. Thomas--the notice to him so provided--and that his lawyer
had moved for a transfer of the matter to Miami. But there is no
claim that his lawyer told him that the motion had been granted.
So Georcely, as well as his lawyer, were obligated to appear at the
St. Thomas hearing. Simply to assume that the motion would be
granted because the INS had not objected is not remotely an
exceptional circumstance beyond the alien’s control. See Tang v.
Ashcroft, 354 F.3d 1192, 1195 (10th Cir. 2003).
The exceptional circumstances requirement, a fairly tough
one, was adopted by Congress precisely because failures to appear
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at scheduled INS hearings had greatly burdened the agency.4 To
charge Georcely with knowledge of his legal obligations may be
unrealistic--he apparently does not read English--but such
knowledge is expected of all, e.g., Atkins v. Parker, 472 U.S. 115,
130 (1985); United States v. Aquino-Chacon, 109 F.3d 936, 938 (4th
Cir.), cert. denied, 522 U.S. 931 (1997), and the obligation as
applied here is less surprising than many others.
Georcely’s counsel told the Board (late in the day and
without evidence) that his client was indigent and could not at the
last minute have come back to St. Thomas. If so, then he was ill-
advised to go to Miami in the first place. Certainly he had no
excuse for waiting until the hearing date had passed to raise such
an excuse. Compare Herbert, 325 F.3d at 70, 72 (exceptional
circumstances where counsel was held in another hearing and
promptly advised the immigration court); Romero-Morales v. INS, 25
F.3d 125, 127, 129 (2d Cir. 1994).
We note also that Georcely did not submit affidavits or
any evidentiary materials to the immigration judge or BIA in
support of his claim that he was financially unable to travel to
the hearing, see, e.g., Ursachi v. INS, 296 F.3d 592, 594 (7th Cir.
4
Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Prior
to 1990, the statute required only that the alien show "reasonable
cause" excusing his or her absence. Tang, 354 F.3d at 1194 n.3,
1195 n.4; see also Maldonado-Perez v. INS, 865 F.2d 328, 333 (D.C.
Cir. 1989); Immigration Act of 1990, Pub. L. No. 101-649, § 545,
104 Stat 4978, 5063-65 (codified at 8 U.S.C. § 1252b(c)(3), (f)(2)
(repealed)).
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2002); In re J-P-, 22 I. & N. Dec. 33, 34-35 (BIA 1998). Nor did
he explain how he was able to travel to Florida from the Virgin
Islands but could not afford the return trip, see Hernandez-Vivas
v. INS, 23 F.3d 1557, 1560 (9th Cir. 1994); Maldonado-Perez, 865
F.2d at 333, or why he could not have stayed in the Virgin Islands
in the first place until the motion was granted.
Turning from Georcely’s conduct to that of his counsel,
the BIA has held that ineffective assistance of counsel can under
certain circumstances count as an exceptional circumstance. See In
Re Rivera, 21 I. & N. Dec. 599, 602-03 (BIA 1996). Indeed, in
immigration cases, ineffective assistance is sometimes treated as
a basis for relief without regard to such a statutory hook, even
though such proceedings are civil and the Sixth Amendment guarantee
inapplicable.5
However, if freely indulged, ineffective assistance
claims would undermine the stringent requirements of section
1229a(b)(5)(C) (and much else in the statute besides) so the BIA
has insisted that the alien has to comply with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
5
This is no easy accomplishment since plenty of other civil
cases have serious consequences, yet the party is still charged
with his lawyer’s errors; but the cases do treat immigration
proceedings differently, using the due process clause as the
justification. See, for example, Jobe v. INS, 238 F.3d 96, 99 n.3
(1st Cir. 2001); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir.
2001); and Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988), for
pertinent background.
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These include the filing of a bar complaint against counsel or
adequately explaining why the complaint has not been filed. See
Tang, 354 F.3d at 1196; In Re Rivera, 21 I. & N. Dec. at 603. So
far as we know, neither has occurred in this case.
Although we have hinted that full compliance with
Lozada's requirements might be excused in an appropriate case,
Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004), the Lozada
requirements generally make sense. It is all too easy after the
fact to denounce counsel and achieve a further delay while that
issue is sorted out. And in the absence of a complaint to the bar
authorities, counsel may have all too obvious an incentive to help
his client disparage the quality of the representation.
The present case is a perfect example. A claim of
inadequate representation has not been squarely made either before
the Board or on this appeal. Counsel has sought to make his own
carelessness, if that is the proper characterization, an excuse for
Georcely’s failure to appear, while never conceding that his own
conduct as counsel was ineffective representation--a standard that
requires a showing of significant incompetence and a likely adverse
effect on the ultimate outcome. Strickland v. Washington, 466 U.S.
668, 691-92 (1984).
It is not even clear that counsel was “incompetent,”
although surely more sloppy than he should have been. There was
probably good reason to expect that the mail would arrive more
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quickly, that (given the alleged INS lack of opposition) the motion
would be granted, and that a new hearing date in Miami would be
set. This self-induced expectation does not excuse the
“exceptional circumstances” test for reopening, but counsel’s
failure to check in timely fashion that the motion was received and
granted is a default hardly unknown in law practice.6
In all events, the ineffective assistance claim has not
been squarely raised; no reason for ignoring Lozada has been
suggested; and ineffective assistance and prejudice are far from
apparent on this record. If Georcely wishes to pursue this issue,
he is free to attempt habeas proceedings in the district court.
Several circuits have suggested this remedy is available for such
claims, e.g., Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir.
2001), but we have no occasion to address the subject here.
Affirmed.
6
The immigration judge’s suggestion that this was a routine
practice by this counsel is a different matter but the immigration
court is aware of the situation and is free to address the problem.
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