UNITED STATES OF AMERICA, Appellee, v. JULIAN FERREIRA-PLASENCIA, Defendant-Appellant., (2nd Cir. 2000)

Docket Number: 99-1777

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 6th day of October two thousand.

Hon. John M. Walker, Jr., PRESENT:

Chief Judge.

Hon. Pierre N. Leval Hon. Fred I. Parker, Circuit Judges.

UNITED STATES OF AMERICA, Appellee, - v. - 99-1777

JULIAN FERREIRA-PLASENCIA, Defendant-Appellant.

APPEARING FOR APPELLANT: TERRANCE WARD, Assistant Federal Public Defender (Thomas G. Dennis, Federal Public Defender, Roger H. Sigal, Assistant Federal Public Defender, on the brief), Hartford, CT.

APPEARING FOR APPELLEE: DEBORAH R. SLATER, Assistant United States Attorney (Stephen C. Robinson, United States Attorney, District of Connecticut, on the brief), Hartford, CT.

Appeal from the United States District Court for the District of Connecticut (Chatigny, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Defendant-appellant Julian Ferreira-Plasencia appeals from a December 9, 1999 judgment of the district court convicting him of unlawful reentry into the United States after deportation, in violation of 8

U.S.C. § 1326.

In June 1992, Ferreira-Plasencia, a Dominican Republic national, was ordered deported following a 1988 conviction for possession of cocaine with intent to sell. At the deportation hearing, Ferreira-Plasencia conceded deportability but requested discretionary relief from deportation under Immigration and Naturalization Act section 212(c), 8 U.S.C. 1182(c), repealed by Pub.L.No. 104-208, 110

Stat. 3009-615 (Sept. 30, 1996). The immigration judge (IJ) denied relief, finding that Ferreira-Plasencia had failed to meet his burden of showing "unusual or outstanding" equities, and ordered him deported.

The IJ supplied immigration counsel with a written order noting the deadline for filing a Notice of Appeal as July 10, 1992, but, Ferreira-Plasencia alleges, the IJ failed to give him INS Form I-618

("Written Notice of Appeal Rights") and failed to "ascertain" whether he had received the form, in violation of INS regulations. See 8 C.F.R. §§ 242.1(c), 242.16(a) (1992), repealed by 62 Fed. Reg.

10,312 (1997). On July 2, counsel sent a Notice of Appeal to the Clerk's Office at the INS with a note that it should be forwarded to the Office of the IJ, rather than sending it directly to the Office of the Immigration Judge (OIJ). The Notice of Appeal therefore was not filed with the OIJ until August 5, 1992. On May 14, 1993, the Board of Immigration Appeals (BIA) dismissed Ferreira-Plasencia's appeal as untimely. Counsel did not contact Ferreira-Plasencia or tell him of the dismissal, but filed a notice to reopen the deportation hearing before the IJ. The IJ denied the motion, and counsel neither appealed the denial nor contacted his client. On March 23, 1995, Ferreira-Plasencia was deported.

In August 1997, Ferreira-Plasencia was found in the United States and charged with unlawfully reentering the United States after deportation, in violation of 8 U.S.C. 1326. In April 1999, the district court denied Ferreira-Plasencia's pre-trial motion collaterally attacking the validity of the 1992

deportation order on the grounds that he had been denied judicial review of the deportation order.

Ferreira-Plasencia was subsequently pleaded guilty and was sentenced to 77 months' incarceration.

This appeal followed.

On appeal, Ferreira-Plasencia argues that the district court improperly barred his collateral attack on the deportation order. 8 U.S.C. 1326(d) imposes three prerequisites for a defendant's collateral attack of a prior deportation order:

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

We accept, without deciding, that Ferreira-Plasencia's counsel's missteps and the IJ's alleged procedural mistakes effectively deprived Ferreira-Plasencia of judicial review and that he has exhausted his administrative remedies. Nevertheless, we agree with the district court that Ferreira-Plasencia failed to demonstrate the "fundamental[] unfair[ness]" of the order, and therefore we affirm.

To demonstrate that the deprivation was "fundamentally unfair," Ferreira-Plasencia must show that he was "prejudiced" thereby. See United States v. Paredes-Batista, 140 F.3d 367, 378 (2d Cir.

1998); United States v. Sanchez-Peralta, No. 97 CR. 536(LAP), 1998 WL 63405, at *11-12

(S.D.N.Y. Feb. 13, 1998) (collecting cases).

Ferreira-Plasencia first urges that he need not show actual prejudice from the deprivation of judicial review, because of the IJ's alleged violation of INS regulations. Citing Montilla v. INS, 926 F.2d 162

(2d Cir. 1991), he argues that a violation of an agency's own regulations eliminates the need to demonstrate actual prejudice.

In Montilla, this Court found that the INS had violated its own regulation requiring IJs to ascertain whether pro se applicants for section 212(c) relief desire to be represented by counsel. See Montilla, 926 F.2d at 166 (citing 8 C.F.R. § 242.16(a)). Montilla appealed the IJ's deportation order to the BIA and then to this Circuit, which vacated and remanded for a new hearing. The court concluded that the IJ's violation simpliciter was sufficient to require a rehearing, without any showing that Montilla was actually prejudiced by the violation.

Montilla, however, was a direct appeal from the BIA, not a collateral attack on an earlier deportation order. This Court has never applied Montilla in a section 1326 proceeding, and we decline to do so now. The prejudice requirement in collateral attack cases derives from the statutory requirement of section 1326(d) that use of a prior deportation order be "fundamentally unfair" to the defendant. Application of Montilla to a collateral attack would contradict this express stricture.

Consequently, Ferreira-Plasencia must show actual prejudice: that he had a "reasonable likelihood" of success in appealing his deportation order to the Second Circuit. Sanchez-Peralta, 1998 WL 63405, at *12 (citing United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997)).

Ferreira-Plasencia argues that the ineffective assistance of his counsel in the immigration proceedings denied him due process and that his deprivation of judicial review prevented his raising that claim. To make out a civil-ineffective-assistance-of-counsel claim on appeal to this Court, Ferreira-Plasencia would need to demonstrate (1) that he exhausted his available administrative remedies on the ineffective assistance of counsel claim, see Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir.

1994); (2) that competent counsel would not have acted as did his, see Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); and (3) that he was prejudiced by counsel's incompetence, i.e., that but for that incompetence, Ferreira-Plasencia had a reasonable likelihood of obtaining favorable relief from the BIA, see id.

We need not decide whether Ferreira-Plasencia exhausted his administrative remedies or whether his counsel acted incompetently, because we conclude that he has failed to demonstrate prejudice by "mak[ing] a prima facie showing ... that he could have made a strong showing in support of his application [before the BIA]." Rabiu, 41 F.3d at 882 (citing Miranda-Lores v. INS, 17 F.3d 84, 85

(5th Cir. 1994)).

In light of Ferreira-Plasencia's drug conviction and other prior convictions, his chances of success before the BIA were de minimis. We also agree with the district court that Ferreira-Plasencia failed to show the "outstanding countervailing equities" that the BIA would require to exercise its discretion in his favor. See Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995).

Accordingly, the judgment of the district court is hereby AFFIRMED.