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Keywords

jurisdictionlawyerappealhearingmotionasylum
jurisdictionlawyerappealhearingmotionasylum

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Puga v. Chertoff

Facts

In 1990, Gama Puga entered the United States at the age of sixteen. He is married and has five U.S. citizen children. In 2001, Gama Puga's first lawyer advised him to file an asylum application for the sole purpose of triggering a removal proceeding, at which point Gama Puga could apply for cancellation of removal under 8 U.S.C. 1229b(b)(1). After his asylum interview, Gama Puga was placed in a removal proceeding. During a hearing before the Immigration Judge, Gama Puga withdrew his asylum application and applied for cancellation of removal under 8 U.S.C. 1229b(b)(1). The IJ found that Gama Puga's removal would not result in 'exceptional and extremely unusual hardship' to his U.S. citizen children and denied relief. The Board of Immigration Appeals affirmed the IJ's decision without opinion in a streamlined decision.

In 1990, Gama Puga entered the United States at the age of sixteen. He is married and has five U.S. citizen children. In 2001, Gama Puga's first lawyer advised him to file an asylum application for the sole purpose of triggering a removal proceeding, at which point Gama Puga could apply for cancellation of removal under 8 U.S.C. 1229b(b)(1). After his asylum interview, Gama Puga was placed in a removal proceeding. During a hearing before the Immigration Judge, Gama Puga withdrew his asylum application and applied for cancellation of removal under 8 U.S.C. 1229b(b)(1). The IJ found that Gama Puga's removal would not result in 'exceptional and extremely unusual hardship' to his U.S. citizen children and denied relief. The Board of Immigration Appeals affirmed the IJ's decision without opinion in a streamlined decision.

Issue

Whether the district court had jurisdiction to review Gama Puga's habeas petition alleging ineffective assistance of counsel in light of the REAL ID Act.

Whether the district court had jurisdiction to review Gama Puga's habeas petition alleging ineffective assistance of counsel in light of the REAL ID Act.

Rule

The Immigration and Nationality Act contains a statutorily-mandated administrative exhaustion requirement. A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.

The Immigration and Nationality Act contains a statutorily-mandated administrative exhaustion requirement. See 8 U.S.C. 1252(d)(1) ('A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . .'); see also Sun v. Ashcroft , 370 F.3d 932, 941 (9th Cir. 2004) (holding that 1252(d)(1) applies not only to petitioners on direct review, but also to habeas petitioners).

Analysis

The court applied the exhaustion requirement by determining that Gama Puga failed to exhaust the administrative remedies available to him, specifically by not filing a timely motion to reopen with the Board of Immigration Appeals. The court noted that a motion to reopen was the only remedy available to Gama Puga to bring his ineffective assistance of counsel claim, and that he had not satisfied the procedural requirements established by the BIA in Matter of Lozada.

The court applied the exhaustion requirement by determining that Gama Puga failed to exhaust the administrative remedies available to him, specifically by not filing a timely motion to reopen with the Board of Immigration Appeals. The court noted that a motion to reopen was the only remedy available to Gama Puga to bring his ineffective assistance of counsel claim, and that he had not satisfied the procedural requirements established by the BIA in Matter of Lozada.

Conclusion

The appellate court affirmed the decision of the district court, concluding that Gama Puga's habeas petition was not properly before the district court due to his failure to exhaust administrative remedies.

The appellate court affirmed the decision of the district court, concluding that Gama Puga's habeas petition was not properly before the district court due to his failure to exhaust administrative remedies.

Who won?

The government prevailed in the case because the court found that Gama Puga did not exhaust the available administrative remedies before seeking habeas relief.

The government prevailed in the case because the court found that Gama Puga did not exhaust the available administrative remedies before seeking habeas relief.

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