Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
OCT 2 2002
PATRICK FISHER
Clerk
No. 01-9508
(BIA No. A39-157-629)
(Petition for Review)
Respondent.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2-
was the product of artificial insemination, but was born prematurely and died.
See id. at 138-40. She asserted that someone must have used her name on the
marriage certificate.
Id. at 151-52.
Mrs. McElwee also stated that she had hired a lawyer to investigate the
matter in the Philippines, and his July 18, 1991 letter to her attorney, David
Calbert, was admitted into evidence.
that Mr. Llamera could not be located at his home in the Philippines, but that he
had married Delia Bastian in 1985 and they had three young children.
She was at home, but refused to disclose the time and place of her marriage.
Id. at 244.
Id.
The investigator offered his opinion that Mr. Llamera would not have married
-3-
Id. He also stated that the priest who signed the marriage
Id.
Id. at 154.
Mrs. McElwee retained attorney Daniel F. Boyle to proceed, but he did not
obtain any authenticated documents to refute the INSs case because he did not
believe their documents would be given much weight.
subsequent hearing before the immigration judge in 1992, Mrs. McElwee repeated
her story that she was never married in the Philippines, and provided additional
information about past and present health problems, and her lack of connections
in the Philippines. Two of her friends also testified to her good character.
Based on all of the evidence, the immigration judge found that the INSs
evidence of Mrs. McElwees marriage in the Philippines was authentic, that she
had given false testimony about her marriage and her children, and that she was
deportable. Considering her application for suspension of deportation, the judge
found that Mrs. McElwee would suffer extreme hardship if deported because of
her health problems, but that she was not entitled to suspension of deportation
-4-
because she could not meet the requirement to show good moral character after
giving false testimony.
Mrs. McElwee hired new counsel and appealed to the Board in 1992,
arguing that she had provided sufficient evidence to show that she was never
married in the Philippines. With her appeal, she offered an authenticated
affidavit from Mr. Llamera, in which he stated that he was never married to her
and had faked the marriage certificate.
the opinion of a handwriting expert indicating that it was highly probable that it
was not her signature on the marriage and birth certificates.
The Board construed the appeal to include a motion to reopen the proceedings,
but denied relief in 1999 because Mrs. McElwee had not explained why the proof
that she was never married in the Philippines was previously unavailable and
because her explanation for the existence of the marriage certificate and the birth
certificates [was] inherently implausible and [was] not supported by any reliable
evidence. Id. at 43.
Mrs. McElwee hired new counsel and, by stipulation with the government,
filed the motion to reopen that is the subject of this petition for review. In it,
Mrs. McElwee argued that Mr. Boyle provided ineffective assistance of counsel
before the immigration judge by not procuring authenticated documentation to
refute the INSs case. The Board denied the motion, noting that it had already
-5-
discussed the documentary evidence she had offered with her appeal and she had
offered no new persuasive evidence.
concluded that Mrs. McElwee lacked seven years of continuous presence in this
country and was therefore ineligible for suspension of deportation.
Id. at 2-3.
In her petition for review to this court, Mrs. McElwee does not dispute the
Boards conclusion that she is ineligible for suspension of deportation as a matter
of law due to lack of residency, regardless of good moral character. Even if the
issue is not deemed waived, we must affirm the Boards decision on this point.
To qualify for suspension of deportation, an alien must establish seven years of
continuous physical presence in the United States, good moral character, and that
either the alien or a citizen member of the aliens family would suffer extreme
hardship if the alien were deported.
1330, 1332-33 (10th Cir. 2002). This stop-time provision applies to all orders
to show cause, even those issued before IIRIRA was passed.
Id. at 1333-34.
Mrs. McElwee entered this country in December 1984. The INS issued her an
order to show cause why she should not be deported in November 1990. Thus,
-6-
under IIRIRA, she cannot establish seven years of continuous presence in the
United States and is not eligible for suspension of deportation as a matter of law.
Nevertheless, Mrs. McElwee argues that the Board should have reopened
the deportation proceeding because: (1) it did not mention that her attorney,
Mr. Boyle, was disbarred sometime after he represented Mrs. McElwee and it
improperly relied on his opinion that she was not credible; (2) the INS did not
oppose her second motion to reopen; and (3) Mr. Boyle provided ineffective
assistance before the immigration judge.
We review the Boards decision denying a motion to reopen for abuse of
discretion. See Becerra-Jimenez v. INS , 829 F.2d 996, 1002 (10th Cir. 1987).
Under this standard, we will reverse a decision of the Board only where the Board
has acted arbitrarily, irrationally, or contrary to law.
Id. at 1000
It is sufficient that the Board identified the backbone of her motion to reopenher
claim of ineffective assistance of counseland explained its dismissal of that
claim as based, at least in part, on her failure to offer new persuasive evidence.
Admin. R. at 2.
Mrs. McElwees claim of ineffective assistance of counsel is also
unavailing. There is no Sixth Amendment right to counsel in civil deportation
proceedings. Michelson v. INS , 897 F.2d 465, 467 (10th Cir. 1990). An alien is
entitled to due process, however, and a claim of ineffective assistance of counsel
in civil immigration proceedings may be based only on Fifth Amendment due
process. Id. at 468. To prove that claim, an alien must show that her counsels
ineffective assistance so prejudiced her that the proceeding was fundamentally
unfair. Id. at 468.
Under the Fifth Amendment standard, Mrs. McElwee cannot show that her
attorneys failure to procure the documentary evidence she later offered with her
appeal to the Board rendered her deportation proceeding fundamentally unfair.
First, Mrs. McElwee cannot show that Mr. Boyles performance was ineffective
for not procuring an affidavit from her alleged husband, Mr. Llamera. An
investigator she hired while this case was still in front of the immigration judge
could not find Mr. Llamera at his home in the Philippines.
See Admin. R.
at 115-16, 244. Mrs. McElwee has neither argued nor demonstrated that
-8-
Mr. Llamera was available to provide Mr. Boyle with an affidavit. In addition,
Mrs. McElwee cannot demonstrate that Mr. Boyles failure to obtain a
handwriting experts opinion prejudiced her. The immigration judge rejected
petitioners explanation that Mr. Llamera had forged all the marriage and birth
certificates as absolutely incredible, since they appeared to him to be authentic
and signed by the same person, and because petitioner had already admitted that
she had lied to the U.S. Consul about her children.
when her first attorney looked for him. In addition, even when Mr. Llamera was
found, he never admitted that he forged the birth certificates; he only claimed to
have forged the marriage certificate.
believed that the signatures on all the documents looked like they were made by
the same person and that they appeared to be Mrs. McElwees signature.
See id.
at 117. As a result, she cannot show that the proceeding was fundamentally
unfair because she cannot demonstrate that there is any credible evidence that her
attorney could have obtained for the immigration judges consideration.
Therefore, the Board did not abuse its discretion in denying her motion to reopen.
-9-
Stephen H. Anderson
Circuit Judge
-10-