Interim Decision #3425 (Part 2)

A. Ineffective Assistance of Counsel as a Basis To Reopen Proceedings

I do not dispute that the respondent bears the burden of demonstrating that his case should be reopened. However, ineffective assistance of counsel may form the basis on which the Board will grant a motion to reopen. Matter of Grijalva , 21 I&N Dec. 472 (BIA 1996). In general, to establish a claim of ineffective assistance of counsel, a respondent must satisfy the three-pronged screening test articulated in our decision in Matter of Lozada , 19 I&N Dec. 637 (BIA), aff’d , 857 F.2d 10 (1st Cir. 1988), by showing (1) that he had an agreement with his former attorney to provide representation, and how the attorney failed to meet that agreement; (2) that he notified his former attorney of the allegations of ineffective assistance he is making against him; and (3) that he lodged a complaint against his former attorney with the state disciplinary authority. The respondent has established ineffective assistance of counsel under the Board’s Lozada test by providing evidence that he had retained counsel and had an agreement for representation, that the agreement was breached, that he confronted prior counsel regarding the breach, and that he filed a complaint with the state bar authorities. Id. ; see also Matter of N-K- and V-S- , 21 I&N Dec. 879 (BIA 1997).

Moreover, according to the law of the United States Court of Appeals for the Second Circuit, ineffective assistance of counsel may form a basis on which to determine that due process has been violated, even in the absence of a specific Lozada claim. See Rabiu v. INS , supra , at 883-84 (addressing ineffective assistance of counsel where the respondent’s counsel failed to file for relief from deportation); Esposito v. INS , 987 F.2d 108, 110-11 (2d Cir. 1993) (addressing ineffective assistance of counsel where counsel failed to file an appeal). The Second Circuit views the breaches of an attorney’s obligation to his client that are at issue in these cases as violations implicating the fundamental fairness of the proceedings.

In this case, we have evidence not only that the respondent’s counsel let him down by failing to represent him at the hearing on the merits of the removal charges and by failing to take an appeal to the Board, but also that the respondent has complied with our screening standard in Matter of Lozada , supra . In any event, even if the respondent is required to demonstrate prejudice, it appears that he has been harmed by his former counsel’s conduct or nonfeasance. He lost not only his opportunity to present his defenses and challenges to the charge of deportability, but also the opportunity to argue his legal position on appeal before the Board. See Rabiu v. INS , supra , at 883-84.

B. Ineffective Assistance of Counsel as an Exceptional Situation

The majority bemoans the fact that the respondent raised these points in the context of an untimely motion to reopen and scolds the respondent for failing even to mention the untimeliness of his motion. But for this unfortunate factor, the majority suggests that it would consider reopening and remanding the case. The majority contends that its point of view is changed by the fact that the respondent delayed in bringing his motion. I must reject such reasoning.

To prevail on a motion to reopen that is untimely, the respondent must demonstrate that his case is one which presents an exceptional situation. Matter of J-J- , supra . The respondent has established aspects of his case that clearly compromised its fairness and resulted in his having to resort to this untimely motion. There is no evidence that the respondent’s motion is either dilatory or frivolous. To the contrary, it is compelling.

The exceptional situation presented by the respondent is one in which he was unrepresented below. Initially, he was afforded an opportunity to obtain counsel, but then was virtually denied the right to be represented when the Immigration Judge proceeded without even inquiring whether he had counsel. Secondly, he became the victim of ineffective assistance of counsel at his removal hearing and on appeal, when the attorney his family had retained failed to appear and represent him.

C. Gross Miscarriage of Justice as an Exceptional Situation

In addition, the exceptional situation presented involves a matter of substantive law. The respondent has alleged and argued, complete with legal citation, that, based on the record, he is not removable as charged. Specifically, he has pointed to the Service’s reliance on a charge that conflicts with the actual record of conviction in the record before us.

He also has argued that the statute under which he was convicted is a divisible one that, standing alone, cannot support the allegations made by the Service. See, e.g. , Matter of Paulus , supra . He has shown that, according to the statutory burden assigned to the Service in a removal proceeding involving a lawful permanent resident, he is not subject to removal on the ground of deportability charged by the Service. Section 240(c)(3)(A) of the Act; see also Matter of Sweetser , Interim Decision 3390 (BIA 1999) (involving analysis of a divisible statute alleged to include a crime that constitutes an aggravated felony).

As we made clear in Matter of Mena , supra , and Matter of Paulus , supra , a state controlled substance violation must be for a substance that is included in the federal controlled substance schedules to incur removal consequences. On its face, the state statute under which the respondent was convicted refers to “any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance.” Conn. Gen. Stat. Ann. § 21a-277(a) (West 1995). The state statute therefore covers both the broader category of controlled substance offenses and the specif ic subcategory of narcotics offenses.

We also have made clear that where a criminal statute includes some offenses that constitute the type of crime included in the immigration provision at issue, and some that do not, we look at the record of conviction to determine the precise nature of the offense of which the respondent was convicted. See Matter of Short , 20 I&N Dec. 136 (BIA 1989), and cases cited therein. Here, the record of conviction presented by the Service does not establish that the substance that gave rise to the respondent’s conviction is one, such as narcotics, which appears on the federal schedules as well as on the Connecticut schedules. See Matter of Davis , supra . In fact, the record of conviction states only that the conviction is for “Poss. with intent to sell” and makes no reference to any type of substance. This is inadequate to sustain the finding that the respondent has been convicted of an offense that qualifies as a controlled substance violation under section 101(a)(43)(B) of the Act.

Nevertheless, the Service persists in claiming that the record of conviction “specifically refers to possession with intent to sell ‘narcotics.’” The fallacy of the Service’s argument is exposed by documentation and legal argument submitted by the respondent in support of his motion to reopen and request for a stay of removal. Through current counsel, he explains that the additional listings in the Connecticut statute would be rendered surplusage if the more narrow federal listing always trumped the sta te listing, as the Service urges it does. He emphasizes that, in fact, Connecticut law provides that federal law is deemed to control, except where the state has placed a particular substance not present on the federal schedule in a higher category on the Connecticut list. As an example, he points to the 1989 and 1990 additions to the Connecticut schedules of anabolic steroids and the legislative history related to such enactments, which clearly refers to Connecticut’s discretion to expand the state sched ule beyond that provided in the federal schedules.

The majority is simply wrong in insisting that the respondent has not claimed that he is not removable, when the respondent has challenged the evidence submitted and the position taken by the Service in these proceedings. The majority is equally wrong in insisting that the respondent must assume the burden of proving that he is not deportable as charged by establishing the substance that formed the basis of his conviction.

I do not read the regulation at 8 C.F.R. § 3.2(a), enabling the Board to reopen or reconsider at any time on its own motion, to obviate the Service’s burden in the proceedings below to establish by clear and convincing evidence that the respondent is actually removable as charged. It would be unreasonable to so hold. Proving that he is not deportable is not the respondent’s burden in the context of an untimely motion to reopen; his burden is to establish an exceptional situation. See, e.g. , Shahandeh-Pey v. INS , 831 F.2d 1384 (7th Cir. 1987) (finding no requirement that the respondent provide proof that his claim would have succeeded on the merits so long as the violation he suffered had the potential to affect the outcome of the hearing).

I conclude that an exercise of the Board’s discretion to reopen in an exceptional situation is warranted in the respondent’s case. The respondent’s removal based on such a defective record, in which the respondent has not been shown to be removable as charged, would constitute a gross miscarriage of justice, and our assertion of jurisdiction over his untimely motion to reopen is warranted.

III. AVAILABILITY OF RELIEF UNDER SECTION 212(c) OF THE ACT

On the record before us, there is every reason to believe that the Service has not met and cannot meet its burden of proving that the respondent is removable as charged based on clear and convincing evidence. On the basis of the conflict between the respondent’s admission and the record of conviction alone, I would, at a minimum, remand the case to the Immigration Judge so that the respondent could face the charges against him represented by counsel. However, I also find another reason to remand.

Even assuming that the respondent was convicted of a controlled substance violation that constitutes drug trafficking within the meaning of section 101(a)(43)(B) of the Act, that conviction occurred in 1995, not 1996. The record of conviction makes clear that the guilty plea was entered and guilt was found on October 24, 1995, before the enactment of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (“AEDPA”). Only the sentencing took place on July 8, 1996.

I recognize that, arguably, the Attorney General’s decision in Matter of Soriano , 21 I&N Dec. 516 (BIA 1996; A.G. 1997), controls the question of the respondent’s eligibility to apply for a waiver under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). However, while I am bound by the rules pronounced by the Attorney General, I believe the recent opinions of the Supreme Court, as well as the decisions of the First, Second, Third, Sixth, Eighth, Ninth, and Eleventh Circuit Courts of Appeals and a growing number of federal district courts, rejecting the Attorney General’s decision in Matter of Soriano , warrant reconsideration of the Attorney General’s interpretation of the temporal reach of former section 212(c) of the Act, as amended. See also Matter of Truong , Interim Decision 3416 (Schmidt, dissenting).

In essence, as interpreted by the Attorney General, the 1996 amendments deny an otherwise eligible permanent resident alien the opportunity he would have had before April 24, 1996, to apply for a discretionary waiver of deportability arising from a conviction for an offense classified as an aggravated felony. Cf. Landgraf v. USI Film Products , 511 U.S. 244 (1994). This interpretation of section 440(d) of the AEDPA raises significant issues that involve both principles of statutory interpretation generally and the presumption against the retroactive application of statutes specifically. See Lindh v. Murphy , 521 U.S. 320 (1997); Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U.S. 939 (1997); Landgraf v. USI Film Products , supra .

The Supreme Court construed Congress’ silence in the statutory section of AEDPA in question in Lindh as “ indicating implicitly that the amendments [under consideration] were assumed and meant to apply . . . only when those cases had been filed after the date of the Act.” Lindh v. Murphy , supra , at 327 (emphasis added). As compared to amended sections of the statute in which Congress expressly provided for a retroactive application, the Court concluded that “[n]othing, indeed, but a different intent explains the different treatment.” Id. at 329; see also INS v. Cardoza-Fonseca , supra , at 432 (“‘“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”’” (quoting Russello v. United States , 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo , 427 U.S. 720, 722 (5th Cir. 1972)))). This construction is equally applicable to the amendment to former section 212(c) of the Act, in light of the fact that Congress made expressly retroactive designations with regard to some provisions that modified the Act, but did not do so with regard to the amendment to former section 212(c) of the Act.

Although the respondent’s hearing took place after April 24, 1996, and although it was a removal hearing rather than a deportation hearing, I believe that the respondent may be entitled to have an opportunity to apply for a waiver of deportation under former section 212(c) of the Act. See Henderson v. INS , 157 F.3d 106, 129 (2d Cir. 1998) (holding that the amended statute has an impermissibly retroactive effect on pre-April 24, 1996, cases that already had been “initiated before the date of [the AEDPA’s] enactment”), cert. denied sub nom. Reno v. Navas , 119 S. Ct. 1141 (1999); see also Mojica v. Reno , 970 F. Supp. 130, 168-72 (E.D.N.Y. 1997). The recent rulings of the United States District Court for the District of Connecticut in Dunbar v. INS , 64 F. Supp. 2d 47 (D. Conn. 1999), and the federal district court decisions in Pottinger v. Reno , 51 F. Supp. 2d 349 (E.D.N.Y. 1999), and Maria v. McElroy , No. 98 CV 6596 (JBW), 1999 WL 82582 (E.D.N.Y. Oct. 7, 1999), support such a conclusion.

Specifically, in Pottinger v. Reno , supra , the United States District Court for the Eastern District of New York followed the Second Circuit’s reasoning in Henderson and concluded that section 440(d) of the AEDPA did not apply to either the date that deportation proceedings were commenced or the date of the conviction forming the basis for deportability. Instead, the court reasoned that the operative event was the commission of the crime. Similarly, in Maria v. McElroy , supra , a companion case to Pottinger , the Eastern District of New York reiterated its holding that section 440(d) does not apply to criminal conduct completed before the enactment of the AEDPA. Applying the Henderson and Mojica reasoning, as well as the International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1967) (entered into force Mar. 23, 1976; entered into force for the United States Sept. 8, 1992), the court reasoned that it was impermissible to apply section 440(d) of the AEDPA to offenses committed before its enactment.

The United States District Court for the District of Connecticut, which would have habeas corpus jurisdiction over the respondent’s case were he to seek review of our decision, has adopted this reasoning and applied it to an alien in removal proceedings whose commission of a crime occurred prior to the AEDPA’s enactment. The court found that the commission of the crime was “the operative event” and reasoned that relief under former section 212(c) “constitutes a legal interest that is important enough for retrospective applications concerns to apply.” Dunbar v. INS , supra , at 53-54 (citing Pottinger v. Reno , supra , at 362). The court went on to note that “the very purpose of the amendments was to change the legal consequences of certain criminal conduct, not the consequences of being convicted of that conduct or having deportation proceedings commenced.” Dunbar v. INS , supra , at 54.

We need not even go as far back as the date on which the respondent committed the offense. Only recently, the Ninth Circuit recognized specifically that the alteration of the law certainly would “severely disturb [a respondent’s] settled expectations [at the time he pled guilty],” that he could apply for a waiver. Magana-Pizano v. INS , 1999 WL 1249703, at *8 (9th Cir. Dec. 27, 1999) (concluding that the amended version of section 212(c) of the Act may not apply if a respondent relied on access to a waiver in entering a plea of guilty). Thus, a showing of detrimental reliance on access to a waiver under section 212(c) of the Act would make the application of the amended statute retroactive as to such a respondent. Id. ; see also Wallace v. Reno , 24 F. Supp. 2d 104, 110-11 (D. Mass. 1998), aff’d , 194 F.3d 279 (1st Cir. 1999).

The fact that the respondent is in a removal proceeding where the statute no longer provides for a waiver under section 212(c) of the Act, rather than a deportation proceeding under the former version of the statute, does not necessarily extinguish the respondent’s vested interest in applying for a waiver under section 212(c) of the Act. Nothing in section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-597 (“IIRIRA”), repealing former section 212(c) of the Act states that such a repeal is to operate retroactively. See also IIRIRA § 309(a) , 110 Stat. at 3009-625 (providing that the provisions of Title III-A, of which section 304(b) is part, apply beginning April 1, 1997); cf. IIRIRA § 309(c)(1) , 110 Stat. at 3009-625 (providing that in the case of an alien who “is in” deportation or exclusion proceedings as of the Title III-A effective date (April 1, 1997), “the amendments made by this subtitle shall not apply”).

Congress did not expressly state that there would be no continuing jurisdiction over a respondent’s application for a section 212(c) waiver when the respondent is determined to have a vested interest in an opportunity to apply for such relief. Its reformation of vested interests that lodged prior to the effective date of the statute can be accomplished by repeal only if Congress expressly states its intent to achieve such a result. See Rodrock v. Security Indus. Bank , 642 F.2d 1193, 1196 (10th Cir. 1981).

Consequently, although an agency’s jurisdiction may be lost by the repeal of the statute that granted it, if vested rights have been acquired under the former law, jurisdiction is retained unless Congress dictates otherwise. See Pentheny v. Government of the Virgin Islands , 360 F.2d 786, 790 (3d Cir. 1966); see also Steamship Co. v. Joliffe , 69 U.S. 450, 458 (1864) (holding that repeal and reenactment “may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them”).

Thus, neither the amendment nor the repeal of former section 212(c) of the Act would have any meaningful bearing on the respondent’s reasonable expectation at the time he entered a guilty plea and was convicted of the offense in 1995 that he would have the opportunity to apply for a waiver under section 212(c) as it existed. Imposing such a limitation appears contrary to the thrust of the Landgraf , Hughes , and Lindh cases decided by the Supreme Court. Accordingly, reexamination of our interpretation of the statute may be appropriate, and the conclusion that the respondent can seek a waiver under former section 212(c) may be warranted. See Matter of Truong , supra (Schmidt, dissenting).

IV. CONCLUSION

The respondent faced a removal hearing before the Immigration Judge without an attorney and was questioned without the advice of counsel. His answers to seemingly straightforward, but actually highly technical, questions are not adequate to meet the Service’s burden of proving a lawful permanent resident removable.

Because the respondent was denied representation by competent counsel, the allegations and charges levied by the Service were neither scrutinized nor challenged. The inconsistencies between the allegations lodged by the Service and the documentary evidence submitted by the Service were not raised or satisfactorily resolved. These inadequacies also were not addressed in the respondent’s appeal of right to the Board, and, as a result, this former Marine and father of two who has lived in the United States f or 27 years faces a final order of removal.

I do not believe this to be a reasonable or a just result. Consequently, I dissent and would grant the respondent’s motion to reopen the proceedings.