Mathelier v. Attorney General of the United States , 388 F. App'x 216 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-4180 & 09-1272
___________
GEORGES MATHELIER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
DEPARTMENT OF HOMELAND SECURITY
Respondents
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A018-083-884)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 22, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Opinion filed July 27, 2010)
___________
OPINION
___________
PER CURIAM.
Georges Mathelier petitions for review of a final removal order entered by the
Board of Immigration Appeals (“BIA”) and a subsequent order denying his motion to
reconsider or reopen the removal proceedings. For the reasons that follow, we will deny
the petitions for review.
Mathelier, a native and citizen of Haiti, was admitted to the United States in 1968
as a lawful permanent resident. He was later convicted of several offenses, including
shoplifting and breach of trust in October 1990, and another shoplifting offense in
December 1990, all in South Carolina. He was then convicted in New York on August
16, 1999, for criminal possession of a controlled substance in the seventh degree, in
violation of New York Penal Law § 220.03.
In 2006, the Department of Homeland Security (“DHS”) charged Mathelier as
removable for a controlled substance offense based on the 1999 conviction. See INA §
237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). DHS alleged in the Notice to Appear that
the controlled substance involved was cocaine. Mathelier appeared before the
Immigration Judge (“IJ”) with counsel, admitted the factual allegations in the Notice to
Appear, and conceded removability as charged. Thereafter, DHS filed additional charges
based on the South Carolina convictions, asserting that Mathelier is removable for two or
more crimes involving moral turpitude and an aggravated felony theft offense. See INA
§§ 237(a)(2)(A)(ii) and (iii), 8 U.S.C. §§ 1227(a)(2)(A)(ii) and (iii). Mathelier conceded
removability on these charges, as well.
Mathelier applied for a waiver of removal under former INA § 212(c), 8 U.S.C.
§ 1182(c), which, prior to its repeal in 1996, “permitted deportable aliens, who had
accrued seven years of lawful permanent residence in the United States, to request
discretionary relief from deportation if the equities weighed in favor of their remaining in
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the country.” Atkinson v. Att’y Gen., 479 F.3d 222, 224 (3d Cir. 2007). He also sought
Convention Against Torture (“CAT”) relief.
The IJ held that Mathelier was ineligible for a § 212(c) waiver in light of his
removability for the 1999 controlled substance offense, which was committed after the
repeal of § 212(c). The IJ also denied CAT relief. The BIA agreed and dismissed
Mathelier’s appeal. Mathelier timely filed a petition for review in this Court.
Mathelier filed a motion with the BIA to reconsider or reopen, arguing that the
assistance of his now-former counsel was ineffective in conceding removability for the
1999 offense. The BIA denied relief, and Mathelier timely filed a petition for review.
The petitions for review have been consolidated for disposition.
Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(D) to the review of
constitutional claims or questions of law. Mathelier raises two such claims.1
First, he contends that the BIA erred by conducting a single Board member review
of his case rather than a three-member panel review. Under 8 C.F.R. § 1003.1(e), the
BIA will conduct single-member review “[u]nless a case meets the standards for
assignment to a three-member panel under paragraph (e)(6) of this section.” We review
the decision to employ single-member review to determine whether it was “arbitrary or
capricious.” Purveegiin v. Gonzales, 448 F.3d 684, 692 (3d Cir. 2006).
Mathelier argues that there was a “changing legal framework” for claims of
1
Mathelier initially argued his CAT claim in his opening brief, but he expressly
withdrew the claim in his reply brief, and therefore we do not address the CAT claim.
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ineffective assistance of counsel following the Attorney General’s decision in In re
Compean, 24 I. & N. Dec. 710 (A.G. 2009), and that his case warranted three-member
review because his claim that prior counsel was ineffective “did not fall within standard
precedent decisions.” Petitioner’s Br. at 13-14. The record reflects that the BIA applied
the controlling standards for an ineffective-assistance claim of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988), both in its review of Mathelier’s appeal from the final removal
order, see A.R. at 153, and on the motion to reconsider or reopen, see A.R. at 2. The BIA
completed its review and decided both matters prior to issuance of the Compean decision.
We see no absence of “precedent decisions” for Mathelier’s claim. Single-member
review, therefore, was not arbitrary or capricious.
Second, Mathelier claims that, notwithstanding his concession before the IJ that he
is removable for the 1999 offense, the BIA erred in holding that he is ineligible for a
§ 212(c) waiver. The BIA twice reviewed and rejected this claim. On Mathelier’s appeal
from the final removal order, it noted the Notice to Appear set forth the following factual
allegation: “You were convicted of the Crime of Criminal Possession of a Controlled
Substance in the Seventh degree, to wit; Cocaine, in violation of Section 220.03 of the
New York State Penal Law[.]” The BIA observed that Mathelier’s counsel admitted the
factual allegation in open court and conceded removability, and that Mathelier made no
statement at the hearing contradicting counsel’s concession. The BIA held that the
concession was binding on Mathelier as a judicial admission. Further, with respect to the
argument that the concession was ineffective assistance, the BIA noted that Mathelier had
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not complied with the procedural requirements of Matter of Lozada, nor had he shown
that counsel’s concession was “ineffective assistance on its face, as opposed to a rational
tactical decision.” A.R. at 153. The BIA thus rejected any challenge to removability
under INA § 237(a)(2)(B)(i) based on the 1999 conviction, and it affirmed that Mathelier
is ineligible for a § 212(c) waiver.2
Mathelier then moved to reconsider or reopen, arguing again that counsel was
ineffective and submitting evidence to show compliance with Matter of Lozada. The BIA
denied reconsideration, holding that the motion was untimely filed and failed to identify
errors of fact or law in the prior decision. It also refused to reopen the proceedings.
While Mathelier had now complied with Matter of Lozada, the BIA found that he “has
presented no evidence that rebuts the truth of the admission of removability.” A.R. at 2.
Thus, “while a different attorney may have taken an alternative strategic approach,” the
BIA refused to conclude that counsel’s choice to concede removability “renders him not
competent, or that the choice was an unprofessional error.” Id. (quotation marks omitted).
Further, in the absence of evidence that Mathelier was not convicted of the offense
charged in the Notice to Appear, the BIA found that he “cannot establish that [counsel’s]
performance was so deficient that there is a ‘reasonable likelihood’ that the outcome
would have been different if counsel had not conceded the charge.” Id.
2
Notably, Mathelier has not contested, either before the BIA or this Court, the IJ’s
finding that he is removable under INA §§ 237(a)(2)(A)(ii) and (iii) based on the three
South Carolina convictions.
5
We discern no error in this analysis. Mathelier is removable under INA
§ 237(a)(2)(B)(i) in light of his express concession, through counsel, of removability on
that basis. See 8 C.F.R. § 1240.10(c); Shin v. Mukasey, 547 F.3d 1019, 1024 (9th Cir.
2008) (explaining that DHS initially has burden to prove removability by clear and
convincing evidence, but when alien concedes removability, “the government’s burden in
this regard is satisfied”) (quotation marks omitted). While Mathelier now claims that
there is insufficient evidence in the record to prove removability for a controlled
substance offense, “[a]dmissions by parties are not subject to judicial scrutiny to ensure
that the admissions are fully supported by the underlying record.” Hoodho v. Holder, 558
F.3d 184, 191 (2d Cir. 2009). Mathelier further claims that counsel’s admission was
insufficient because it was “lacking in detail or specifics.” Petitioner’s Br. at 18.
However, counsel expressly stated to the IJ that he had spoken with Mathelier, and that
the allegations in the Notice to Appear “are admitted and we concede the charge.” A.R.
at 355-56. This statement plainly was sufficient to enable the IJ to determine that the
charge of removability was established. In short, having conceded removability as
charged, the IJ properly held that Mathelier was removable for the 1999 conviction.
Mathelier seeks to overcome this result by arguing that counsel’s concession of
removability was ineffective assistance and worked a denial of his due process rights. “A
claim of ineffective assistance of counsel in removal proceedings is cognizable under the
Fifth Amendment – i.e., as a violation of that amendment’s guarantee of due process.”
Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007). “[A]n alien claiming ineffective
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assistance of counsel in removal proceedings must, in addition to showing that his lawyer
committed unprofessional errors, show that there was a reasonable likelihood that the
result would have been different if the errors had not occurred.” Id. at 159 (quotation
marks and punctuation omitted).
Mathelier fails to make this showing.3 Although he complied with the Matter of
Lozada procedural requirements on the motion to reopen, Mathelier has not shown that
counsel’s performance was incompetent. As the BIA observed, Mathelier cites no
evidence at all to rebut the truth of his open court admission that the 1999 conviction
involved cocaine, and that it was, therefore, a controlled substance offense covered by
INA § 237(a)(2)(B)(i). His counsel, therefore, cannot be deemed ineffective for having
offered that admission to the IJ. While Mathelier has tried to show that the evidence of
record does not reflect that the offense involved cocaine, we fully agree with respondent
that “the record contains no evidence that would indicate that [Mathelier] was not
convicted of cocaine possession in 1999, and in fact contains evidence tending to
establish that [Mathelier] was so convicted.” Respondent’s Br. at 30-31 (citing evidence
of record). Moreover, given the absence of any evidence showing that Mathelier was not,
in fact, convicted of an offense involving cocaine, there is no “reasonable likelihood” that
the outcome would have been different had counsel not conceded that fact.
In sum, the BIA properly held that the record supports the finding that Mathelier is
3
Our review is de novo of the ineffective assistance of counsel claim. Fadiga, 488
F.3d at 153.
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removable for the 1999 controlled substance offense, and because that offense occurred
after the repeal of § 212(c), Mathelier is ineligible for a waiver of removability. See
Cespedes-Aquino v. Att’y Gen., 498 F.3d 221, 225 (3d Cir. 2007).
Based on the foregoing, we will deny the petitions for review.
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