Thiodoris v. Atty Gen USA , 280 F. App'x 231 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-27-2008
Thiodoris v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3820
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3820
YOSEPH THIODORIS; KLAUDIA CHRISTINA MURTINI;
MAGDALENA INES THIORESTA; REGINA FLORENCIA FERTHIO
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY
Respondents
__________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A95-190-410/411/412 and 413)
__________________
Submitted under Third Circuit LAR 34.1 (a)
on March 4, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges
(Opinion filed: May 27, 2008)
OPINION
ROTH, Circuit Judge:
Yoseph Thiodoris, his wife Klaudia Christina Murtini, and their children, Magdalena
Ines Thioresta and Regina Florencia Ferthio (Petitioners), seek review of a decision by the
Board of Immigration Appeals (BIA) declining to reopen their appeal from an order of
deportation. Petitioners argue that they were denied effective assistance of counsel as a
result of their decision to use an immigration consultant for certain phases of their application
for asylum instead of hiring an attorney. Finding no error, we will deny the petition for
review.
I. BACKGROUND
Petitioners are citizens of Indonesia and practicing Christians. Petitioner Yoseph
Thiodoris is ethnically Chinese, while his wife is ethnically Javanese. Petitioners entered
the United States in July of 2001 on tourist visas, and applied for asylum in October of
2001. They were then placed in removal proceedings when a Notice to Appear was
served upon them on January 13, 2003. At a hearing on February 25, 2003, the
Immigration Judge (IJ) strongly suggested that Petitioners retain an attorney and stop
using the non-lawyer immigration consultant who had been helping them prepare their
papers up until that point. When the hearing resumed on June 17, 2003, Petitioners
appeared with an attorney, who continued to represent them throughout the proceedings
before the IJ. The IJ denied their application for asylum and withholding of deportation
in an oral decision issued on July 28, 2004.
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Petitioners, acting pro se, appealed the IJ’s decision to the BIA. On appeal, they
argued that the immigration judge inappropriately forced them to use an attorney, that the
attorney they retained provided ineffective assistance, and that the IJ erred in his
substantive evaluation of their claim. The BIA dismissed Petitioners’ appeal on
December 27, 2005. Petitioners did not petition for review of the BIA’s decision; they
now claim that their immigration consultant promised to do so and then failed to file the
appropriate papers.
Petitioners filed this motion to reopen with the BIA on March 27, 2006. The BIA
denied the motion to reopen on July 20, 2006. Petitioners filed a timely petition for
review with this Court on August 21, 2006.
We have jurisdiction to review the BIA’s denial of the motion to reopen pursuant
to 8 U.S.C. § 1252 (2005), as amended by The REAL ID Act of 2005, § 106, Pub. L. No.
109-13, Div. B, 119 Stat 231, which confers exclusive jurisdiction on the courts of
appeals to review final orders of removal. Petitioners’ petition for review was timely
filed and venue is proper because the proceedings before the IJ were concluded in
Philadelphia, Pennsylvania.
We review the BIA’s denial of a motion to reopen only for abuse of discretion.
Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). Under the abuse of discretion
standard, the BIA’s decision is reversible only if it is “arbitrary, irrational, or contrary to
law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). We review constitutional
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issues and legal questions under the de novo standard, giving deference under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the
BIA’s interpretation of the Immigration and Nationality Act, where appropriate. See
Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002); Ilchuk v. Att’y Gen., 434 F.3d 618,
621 (3d Cir. 2006), INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
II. DISCUSSION
Petitioners contend that they were provided ineffective assistance of counsel by the
immigration consultant that they hired to assist them in preparing their application for
asylum before they retained an attorney and to assist them in prosecuting their appeal
after the IJ ruled against them. They specifically argue that the consultant was ineffective
because (1) he provided legal advice despite a clause in the consulting agreement stating
that the consultant could not “give legal advice or provide legal services” and (2) the
consultant promised to file a petition for review of the BIA’s denial of Petitioners’ appeal
and then failed to do so.
We have not addressed in a precedential opinion the issue of whether relief may be
granted for ineffective assistance by an immigration consultant, and we do not need to do
so here. Any prejudice created by ineffective assistance prior to the February 2003
hearing was cured when the IJ held open the hearing and allowed Petitioners to re-file
their papers after consulting with an attorney. Lack of prejudice would be fatal to a claim
of ineffective assistance by an attorney, and we see no reason why the right would be
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defined more broadly when applied to the conduct of an immigration consultant. See
Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005). Similarly, Petitioners cannot
complain about the handling of their appeal to the BIA because there is no constitutional
right to effective assistance of counsel in civil proceedings at the appellate level. See
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).
There remains the issue of whether the consultant’s failure to file a petition for
review by this Court after promising to do constitutes an extraordinary circumstance
warranting the reopening of Petitioners’ case. While the consultant’s behavior resembles
behavior that the Ninth Circuit has found to constitute an extraordinary circumstance, see,
e.g., Lopez v. INS, 184 F.3d 1097, 1099-1101 (9th Cir. 1999) (finding extraordinary
circumstances where an individual posing as an attorney promised to appear on
immigrant’s behalf at a hearing, informed the immigrant that he need not attend, and then
failed to appear, resulting in a ruling of deporting in absentia), the failure to file for a
second level of appellate review is far less prejudicial than the failure to appear at a
deportation hearing. In addition, it is not clear how Petitioners could have reasonably
relied upon a non-attorney to file a legal brief on their behalf with this Court.
Considering the totality of the circumstances, we cannot conclude that the BIA abused its
discretion by declining to reopen Petitioners’ case.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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