Valencia v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA LETICIA VALENCIA, 
Petitioner, No. 04-76571
v.
 Agency No.
A078-009-078
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 12, 2008—Pasadena, California
Filed December 4, 2008
Before: Mary M. Schroeder and Johnnie B. Rawlinson,
Circuit Judges, and Brian E. Sandoval,* District Judge.
Opinion by Judge Schroeder
*The Honorable Brian E. Sandoval, United States District Judge for the
District of Nevada, sitting by designation.
15927
VALENCIA v. MUKASEY 15929
COUNSEL
Sassoun Nalbandian, Valley Village, California, for petitioner
Maria Leticia Valencia.
Michele Y. F. Sarko, Washington, DC, for respondent
Michael B. Mukasey.
OPINION
SCHROEDER, Circuit Judge:
Maria Leticia Valencia appeals the Board of Immigration
Appeals’ decision affirming her order of removal on the basis
of a 1984 California conviction for transporting heroin. The
only issue raised in her petition is whether the IJ was required
as a matter of due process to advise her of a “right” to apply
for asylum, even though, on the basis of the evidence pre-
sented in the record, there was no plausible basis for such an
application. We deny the petition and join the Fifth Circuit in
holding that there is no requirement that an alien be advised
of the availability of relief from deportation where there is no
apparent eligibility to receive it. Ramirez-Osorio v. INS, 745
F.2d 937, 938 (5th Cir. 1984).
In this case, petitioner was paroled into the United States
in 1989 in order to complete an application for adjustment of
status, but when her application for adjustment was denied in
2002, she was placed in these proceedings leading to the order
for her removal. Although she was advised of her right to
retain an attorney, and the hearing was continued more than
once in order to allow her to find one, she could not afford to
retain one, and no local legal aid attorney agreed to represent
her.
The hearing eventually went forward with Valencia repre-
senting herself. Petitioner was advised of her right to cross
15930 VALENCIA v. MUKASEY
examine witnesses, and submit evidence, as well as her right
to be represented at no cost to the government. She submitted
a packet of documents attesting to her good character and
employment during the time she was in the United States. She
indicated to the IJ that she chose Mexico as the country to
which she would be sent if ordered removed, and she was also
given an opportunity during the hearing to ask any questions
about the conduct of the proceeding. She did not at any time
indicate she did not understand the hearing procedures. Nei-
ther did she indicate she feared a return to Mexico, nor did
she suggest a basis for any such fear. Both orally at the con-
clusion of the hearing and in the written order of removal, the
IJ expressly found that Valencia did not appear to be eligible
for any relief from removal.
On appeal to the BIA, petitioner was represented by coun-
sel. The BIA affirmed the order of removal on the basis of her
California conviction for the offense of transportation or sale
of heroin and, in accordance with our caselaw, ruled that sub-
sequent expungement of the offense had no consequence for
immigration purposes. See Ramirez-Castro v. INS, 287 F.3d
1172, 1174-76 (9th Cir. 2002); Murillo-Espinoza v. INS, 261
F.3d 771, 774 (9th Cir. 2001).
In the appeal to the BIA, Valencia also argued that the IJ
should have advised her that she could apply for asylum,
withholding, or relief under the Convention Against Torture.
The BIA rejected this argument because under controlling
regulations, the IJ has a duty to inform an alien of the avail-
ability of relief in removal proceedings only where the cir-
cumstances of the case reasonably reflect the alien’s
“apparent eligibility” for the particular form of relief at issue,
8 C.F.R. § 1240.11(a)(2), or where the alien expresses a fear
of persecution or harm upon return to any of the countries to
which the alien may be removed, id. § 1240.11(c)(1). At a
minimum, the BIA said, the alien must express a fear of per-
secution or torture in the country to which the alien would be
returned or articulate some theory that might support a claim.
VALENCIA v. MUKASEY 15931
Our court has agreed with this interpretation of the regula-
tions. See United States v. Barraza-Leon, 575 F.2d 218, 222
(9th Cir. 1978) (construing 8 C.F.R. § 242.17(a), the sub-
stance of which can now be found in 8 C.F.R.
§ 1240.11(a)(2)).
Petitioner brings a similar argument to this court, contend-
ing that due process required the IJ to give her blanket notice
of a right to apply for removal, withholding, or protection
under the Convention Against Torture. She does not suggest
that any change of circumstance or newly available evidence
would support an application for relief at this time. She did
not seek a reopening of her case by the BIA. 8 U.S.C.
§ 1229a(c)(7). Thus, neither in her appeal to the BIA nor in
her brief to us does petitioner suggest there is any plausible
basis for relief from removal.
[1] In rejecting a similar contention that aliens in removal
proceedings are entitled to be advised of avenues for seeking
relief from removal, even if there appear to be none available,
the Fifth Circuit in Ramirez-Osorio pointed out that an alien
in civil removal proceedings is not entitled to the same bundle
of constitutional rights afforded defendants in criminal pro-
ceedings. 745 F.2d at 944 (“Consistent with the civil nature
of the proceeding, various protections that apply in the con-
text of a criminal trial do not apply in a deportation hearing.”
(quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038
(1984))). Due process in any ordinary civil removal proceed-
ing does not require an alien to make a “knowing and intelli-
gent” waiver of any right to apply for relief from removal. Id.
at 945. This court in Orantes-Hernandez v. Thornburgh, 919
F.2d 549, 551, 567 (9th Cir. 1990), affirmed an injunction that
required the Immigration and Naturalization Service (“INS”)
to give a written advisal of rights to the members of a class
of Salvadoran citizens, but we did so on the basis of a demon-
strated pattern and practice of abuses by the INS against
members of the class. No such pattern has been suggested
here. The record in this case demonstrates that the petitioner
15932 VALENCIA v. MUKASEY
was able to present evidence on her own behalf, to have an
interpreter to assist her, and to seek legal counsel. There is no
challenge to any aspect of her administrative proceedings
other than the claimed failure to advise her of relief for which
she was and still is apparently ineligible. There was no basis
for an application for relief from removal and no due process
right to be told about the possibility of filing one.
[2] There is one additional point we should consider. The
alien in this case had been denied an adjustment of status after
being paroled into this country. As the BIA explained, her sta-
tus on such denial reverted by operation of law to that of an
applicant for admission. 8 U.S.C. § 1182(d)(5)(A). The gov-
ernment in its brief points out that applicants for admission
are unlike admitted aliens or aliens who are not subject to the
“entry fiction,” and therefore applicants for admission have
virtually no constitutional rights regarding their applications.
See Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The gov-
ernment understandably does not urge us to rest on that
ground in rejecting petitioner’s argument, however. There is
no reason to limit our holding to applicants for admission and
thus suggest that due process might require a different result
in a case involving an alien who has effected an entry into the
United States rather than one who is seeking admission in the
first instance. An alien has no blanket right to be advised of
the possibility of asylum or other relief in either case.
[3] We agree with the Fifth Circuit that requiring the IJ to
advise an alien of the availability of relief for which there is
no apparent eligibility would invite the filing of meritless
applications. Ramirez-Osorio, 745 F.2d at 946. Applications
for relief require often protracted evidentiary proceedings,
including documents, witnesses, and evaluation of social and
political conditions in a country outside of the United States.
Such applications should not be encouraged where there is no
reason to believe they would be anything but futile. As the
Fifth Circuit observed, “[o]nce an alien is given notice of the
right to petition for asylum there is considerable incentive for
VALENCIA v. MUKASEY 15933
him to do so, no matter how slim the chances of success, since
an application may well extend deportation proceedings for
years.” Id.The resources of the agencies charged with administration
of our immigration laws are limited and severely taxed.
Indeed, Congress has acted to deter the filing of applications
that lack merit. If an application is deemed to be so meritless
as to be “frivolous,” an alien may be permanently ineligible
for benefits under the Immigration and Nationality Act. 8
U.S.C. § 1158(d)(6). Thus, if an IJ were required to advise of
all possible ways of obtaining relief from deportation, and if
an alien, acting upon such notice, were to file a frivolous
application, the application could not only add needless
administrative burdens on the immigration system, but also
result in a frivolousness determination that would leave the
alien in a worse position than if there had been no notice.
Surely due process, which at its core means fairness, cannot
require such a result.
Petition DENIED.