Cooke v. Atty Gen USA, (3rd Cir. 2006)

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NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-3191

J O Y P. COOKE,

Petitioner

v. A T T O R N E Y GENERAL OF

T H E UNITED STATES,

Respondent

P e titio n for Review of an Order of the

B o a rd of Immigration Appeals

(N o . A91-309-549

Im m ig ra tio n Judge: Henry S. Dogin

A R G U E D APRIL 26, 2006

B E F O R E : SCIRICA, Chief Judge, and NYGAARD, Circuit Judges,

and YOHN,* District Judge.

(F ile d May 31, 2006)

R u c h i Thaker, Esq. (Argued) B re tz & Coven 3 0 5 Broadway, Suite 100 N e w York, NY 10007 C o u n s e l for Petitioner D o n n a A. Krappa, Esq. (Argued) O f f ic e of the United States Attorney 9 7 0 Borad Street, Room 700 N e w a rk , NJ 07102 C o u n s e l for Respondent O P IN I O N OF THE COURT N Y G A A R D , Circuit Judge.

J o y Cooke appeals the Board of Immigration and Appeals' order denying h er motion to reopen her immigration proceeding. Because we conclude that the BIA f a ile d to address her claim that the Immigration Judge erred by failing to advise her of her " a p p a re n t eligibility" for a waiver of inadmissibility pursuant to INA § 212(h), 8U.S.C. § 1 1 8 2 (h ), we will grant Cooke's petition for review and remand the cause to the BIA.

I.

J o y Cooke, a native and citizen of Jamaica, gained admittance as a lawful p erm an en t resident ("LPR") in the United States in 1991. She has three children who are U n ite d States citizens, ages 21, 14, and 10. She is married to a United States citizen a lth o u g h they do not currently live together. She is the primary caretaker of her three c h ild re n and is employed as a healthcare worker. Beginning in 1991 and continuing over th e next eight years, Cooke was convicted approximately ten times of petit larceny, a tte m p te d petit larceny, shoplifting, and receiving stolen property under New York and N e w Jersey laws. However, none of these convictions were felonies. She served jail time f o r only two of these convictions. She has not been convicted of any crime since 1999.

A t some point before 2001, Cooke left the United States for a short trip to J a m a ic a . Upon returning to the United States at Newark International Airport, the Im m ig ra tio n and Naturalization Service issued a Notice to Appear against her. The N o tic e advised her that the INS was instituting deportation proceedings against her and c h a rg e d her as an arriving alien who was inadmissible to the United States under INA § 2 1 2 (a )(2 )(A )(i)(I), 8U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime in v o lv in g moral turpitude.

After being issued the Notice, Cooke hired a New York attorney to re p re se n t her in connection with her deportation proceeding. As her attorney, he was re sp o n s ib le for advising her of any forms of relief from removal for which she might be e lig ib le . But, at no time after he was retained and engaged with her case, nor at the re m o v a l hearings did he ever advise Cooke that she was eligible for a waiver under INA § 2 1 2 (h ), 8U.S.C. § 1182(h), as a returning lawful permanent resident with more than s e v e n years' residency, no aggravated felony convictions, and a qualifying relative.

In fact, at the removal hearings the IJ discussed with her attorney the forms o f relief for which Cooke might have been eligible. In response, her attorney applied for ca n ce llatio n of removal for Cooke under INA § 240A, 8U.S.C. § 1229b, which the IJ p rop erly denied because Cooke was statutorily ineligible. The IJ then questioned Cooke's a tto rn e y as to whether there was any other form of relief for which Cooke might be e lig ib le and the attorney replied in the negative.

After the hearing, the IJ issued a written decision denying Cooke's a p p lic a tio n for cancellation of removal pursuant to § 240A, and, never raising the p o s s ib ility of relief under § 212(h), ordered Cooke removed to Jamaica. Cooke appealed the decision to the BIA, still not raising the § 212(h) possibility for relief. The BIA a f f irm e d the IJ's order.

After consulting with new attorneys, Cooke discovered that she could have a p p lie d for § 212(h) relief. She then filed a timely motion to reopen with the BIA, a rg u in g that she had received ineffective assistance of counsel because her attorney had fa iled to apply for § 212(h) relief on her behalf. Additionally, she argued that the IJ s h o u ld have recognized her "apparent eligibility" for § 212(h) relief and, pursuant to 8 C .F .R . § 1240.11 (formerly 8 C.F.R. § 240.11), was required to advise her that she was e lig ib le to apply for it.

The BIA denied Cooke's motion to reopen. It concluded, without d is c u s s io n , that the "motion does not demonstrate that [Cooke] is eligible for [INA § 2 1 2 (h )] relief." 1 Additionally, the BIA held that Cooke's proceeding "did not merit re o p e n in g as a matter of discretion" because "it is highly unlikely that Cooke would be g ra n te d relief from removal." Consequently, the BIA rejected Cooke's ineffective a s s is ta n c e of counsel claim.

C o o k e filed a petition for a writ of habeas corpus, challenging the BIA's o rd e r of removal. Cooke's habeas petition contended that: (1) the IJ and the BIA violated h e r right to due process because they failed to follow the regulation requiring IJs to in f o rm aliens of their apparent eligibility for relief; (2) her right to due process was v io la te d due to ineffective assistance of counsel; and (3) the BIA violated her right to due p roc ess because it "failed to follow case law." However, under § 106 of the REAL ID A ct, the United States district courts no longer have jurisdiction over habeas petitions.

Under § 106(c)), her habeas petition was transferred to the court of appeals and converted f ro m a habeas petition to a petition for direct review pursuant to section 242(a) of the IN A . See Bonhometre v. Gonzalez, 414 F.3d 442, 446 (3d Cir. 2005). Accordingly, and b e c a u s e Cooke's petition poses questions of law, we have jurisdiction to review. See S in g h v. Gonzalez, 432 F.3d 533, 537 (3d Cir. 2006).

II.

W e review a denial of a motion to reopen an immigration proceeding for a b u s e of discretion. See Zheng v. Gonzalez, 422 F.3d 98, 106 (3d Cir. 2005) ("Motions to re o p e n immigration proceedings are viewed with strong disfavor, and we review the B IA 's decision to deny the reopening for abuse of discretion, mindful of the broad d e f ere n c e that the Supreme Court would have us afford.") (quoting Xu Long Lu v. A sh c ro ft, 259 F.3d 127, 131 (3d Cir. 2001)) (internal quotations omitted).

"Discretionary decisions of the Board will not be disturbed unless that are found to be a rb itra ry, irrational, or contrary to law." Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2 0 0 4 ) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).

To determine whether a Board decision is arbitrary, irrational, or contrary to law, we must be able to discern both that the BIA addressed the alien's claims and that its reasons for the decision are clearly expressed. Awolesi v. Ashcroft, 341 F.3d 227, 233 (3 d Cir. 2003) (citing Bastidas v. INS, 609 F.2d 101, 105 (3d Cir. 1979)). Thus, where th e Board fails to adequately address some claim made by the alien in her motion to re o p e n , or where it addresses that claim but fails to clearly articulate its reasons for its f in d in g , we cannot review the Board's decision and will remand for reconsideration. See id . at 232 ("In order for [the Court] to be able to give meaningful review to the [Board]'s d ec isio n , [the Court] must have some insight into its reasoning."); Tipu, 20 F.3d at 586 (" [ T ]h e Board failed to consider one of the factors in Tipu's favor, a practice which in S o tto v. INS resulted in a remand for reconsideration."); see also INS v. Ventura, 537 U.S.

1 2 , 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) ("A court of appeals is not generally e m p o w e re d to conduct a de novo inquiry into the matter being reviewed and to reach its o w n conclusions based on such an inquiry. Rather, the proper course, except in rare c irc u m s ta n c es is to remand to the agency for additional investigation or explanation.") (in terna l citations and quotations omitted).

H e re , the BIA failed to address Cooke's first claim that the IJ was required to address her "apparent eligibility" for relief under § 212(h) relief. The government does n o t respond to this, other than to argue that Cooke was not eligible for section 212(h) re lie f and, even assuming arguendo that she was, the BIA was within its discretion to d e n y her motion to reopen.2 This misses the mark. The issue here is not whether Cooke w as ultimately eligible for section 212(h) relief or whether, assuming she was, the IJ sh o u ld have granted her such relief. Rather, the issue here is the BIA's responsibility to ad d ress all of an alien's claims of error. Cooke's first allegation of error was that the IJ f a iled to advise her of her "apparent eligibility" for section 212(h) relief and there is n o th in g in the BIA's opinion addressing this claim.

To trigger an IJ's obligation to inform an alien concerning her "apparent e lig ib ility" of some form of relief, the alien must meet the threshold requirements for such re lie f . Moran-Enriquez v. INS, 884 F.2d 420, 422 (9 th Cir. 1989). Cooke offers m e rito rio u s reasons both for why the IJ was required to advise her of her apparent e lig ib ility for section 212(h) relief, see 8 C.F.R. § 1240.11(a)(2), and for her apparent elig ibility. She also argues that the record establishes that she met the statutory re q u ire m e n ts for eligibility of section 212(h) relief. We, however, are not the appropriate f o ru m to review or address in the first instance her contention. Ventura, 537 U.S. at 16, 1 2 3 S.Ct. at 355. Instead, it is appropriate that we remand to the BIA so that it may a d d re ss Cooke's claim that she was eligible for section 212(h) relief and that the IJ failed to advise her of her apparent eligibility, in violation of 8 C.F.R. § 1240.11(a)(2).3 I I I. W e will grant Cooke's petition for review, vacate the BIA's May 30, 2003 d e c is io n denying her motion to reopen, and remand the cause to the BIA for further p ro c e ed in g s consistent with this opinion.

*Honorable William H. Yohn, Jr., Senior District Judge for the United States D is tric t Court for the Eastern District of Pennsylvania, sitting by designation. 1. T h e BIA's decision reads in full: T h e respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to reopen o u r decision dated December 17, 2002. The respondent claims ineffective ass istan ce of former counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1 9 8 8 ), aff'd, 857 F.2d 10 (1 st Cir. 1988). She declares that her former counsel f a ile d to seek relief on her behalf for which she was eligible, specifically relief u n d e r section 212(h) of the Immigration and Nationality Act on the basis of e x tre m e hardship to her United States citizen children. See Matter of Mendez, 21 I& N Dec. 296 (BIA 1996). However, her motion does not demonstrate that she is eligible for such relief. Moreover, the respondent has not shown that she merits reopening as a m a tte r of discretion. The respondent has ten larceny-related convictions since the m id -1 9 8 0 's. Given this history of criminal activity and disregard for this c o u n try's laws, it is highly unlikely that she would be granted relief from re m o v a l, even if she were eligible to be considered for relief. Accordingly, we f in d that the respondent has not established a claim of ineffective assistance of c o u n se l to warrant reopening in this case. See Matter of Assad, 23 I&N Dec. 553 (B IA 2003). The motion is denied. 2. T h e BIA's failure to address the existence of Cooke's apparent eligibility claim p re c lu d e s our ability to determine the basis for its decision. At this juncture, the g o v e rn m e n t's assertion that the BIA rejected this claim on the grounds of ineligibility and d is c re tio n is only speculative. 3. B e c a u se we grant Cooke's petition for review based on the BIA's clear error in fa iling to address her "apparent eligibility" claim, we do not reach the merits of Cooke's in e f fe c tiv e assistance of counsel claim at this time.

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