Joao Jaroslav Perez-Mirachal v. Attorney General of the United States

The Honorable Arthur L. Alarcón, Senior Judge of the United States Court of*
Appeals for the Ninth Circuit, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-1806
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JOAO JAROSLAV PEREZ-MIRACHAL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A45-380-934
(Board of Immigration Appeals Judge: Honorable Anthony C. Moscato)
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 17, 2008
Before: SLOVITER, JORDAN, and ALARCÓN, Circuit Judges.*
(Filed: April 23, 2008)
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OPINION OF THE COURT
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ALARCÓN, Circuit Judge.

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The Board of Immigration Appeals (“Board”) affirmed the Immigration Judge’s
decision to remove Joao Jaroslav Perez-Mirachal because he committed an “aggravated
felony.” Perez-Mirachal appeals the Board’s decision on two grounds. He contends that
he received ineffective assistance of counsel at his state criminal trial because his attorney
did not warn him of the effect a guilty plea would have on his immigration status. He
also asserts that the Board abused its discretion in denying his motion for a continuance to
permit him to attack his criminal conviction. We have jurisdiction to review pursuant to 8
U.S.C. § 1252(a)(1). For the reason set forth below, we affirm the Board’s decision.
I
Perez-Mirachal is a native and citizen of the Dominican Republic. He was
admitted to the United States on April 26, 1996 as a conditional resident. Subsequently,
around May 1999, he became a lawful permanent resident.
On May 9, 2003, Perez-Mirachal was convicted of attempted criminal sale of
cocaine in the New York Supreme Court, Queens County, in violation of Section 110-
220.39 of the New York State Penal Law. He pled guilty and received a sentence of five
years of probation.
On January 23, 2006, the Department of Homeland Security issued a notice to
appear, charging Perez-Mirachal with removal under INA § 237 (a)(2)(B)(I) based upon
his conviction of a controlled substance offense, and INA § 237(a)(2)(A)(iii) because of
his conviction of an aggravated felony. In a hearing before an Immigration Judge, Perez-

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Mirachal admitted the charges and conceded removability. He requested a continuance of
his case to mount a collateral attack on his criminal conviction. At the time of his
request, however, Perez-Mirachal had not yet attempted to set aside his criminal
conviction in state court. On March 6, 2006, the Immigration Judge denied Perez-
Mirachal’s request for a continuance and ordered that he be removed to the Dominican
Republic.
Perez-Mirachal appealed from the Immigration Judge’s decision. In his appeal, he
alleged that the Immigration Judge abused his discretion in denying his motion for a
continuance. On June 5, 2006, the Board rendered a decision dismissing the appeal and
affirming the Immigration Judge’s decision of removal. The Board rejected Perez-
Mirachal’s allegation that the Immigration Judge erred in denying a continuance.
He timely filed the petition for review presently before this Court.
II
Perez-Mirachal presents two arguments on appeal. First, he argues that he was
denied due process at the state criminal trial because his criminal attorney was ineffective
in not warning him of the consequences his guilty plea would have on his immigration
status. Second, he contends that the Board abused its discretion in denying his motion for
a continuance. We disagree.
A

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Perez-Mirachal contends that this Court should vacate his criminal conviction
because he received ineffective assistance of counsel in his state criminal conviction. He
argues that “the Board rendered an arbitrary and unjust decision since it failed to
acknowledge that the Petitioner[‘s] due process rights were violated.” (Appellant’s Br.
13). Perez-Mirachal argues that the failure of his defense attorney to explain the
consequences of his plea agreement constitutes ineffective assistance of counsel and a
due process violation. The Government asserts that Perez-Mirachal cannot attack an
otherwise valid state court conviction in immigration proceedings.
It is well settled that an alien may not collaterally attack an otherwise valid state
court conviction, or go behind the judicial record, in immigration proceedings. See
Drakes v. INS, 330 F.3d 600, 601 (3d Cir. 2003), cert. denied, 540 U.S. 1008 (2003))
(holding that the constitutionality of a state conviction providing the basis for an order of
removal may not be challenged in an immigration proceeding); see also Trench v. INS,
783 F.2d 181, 184 (10th Cir.) (holding that an alien cannot use deportation proceedings to
attack state law conviction), cert. denied, 479 U.S. 961 (1986); Avila-Murrieta v. INS,
762 F.2d 733, 736 (9th Cir. 1985) (holding that the INS may not examine validity of
conviction for deportation purposes); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981)
(per curiam) (holding that immigration authorities must look solely to judicial record of
final conviction and may not make independent assessment of the validity of a guilty
plea); Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (holding that an alien

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adjudged guilty by foreign tribunal may not mount collateral attack on conviction in
deportation proceedings); Longoria-Castenada v. INS, 548 F.2d 233, 236 (8th Cir. 1977)
(holding that immigration authorities may not go beyond the judicial record of conviction
to make an independent determination of guilt or innocence), cert. denied, 434 U.S.
853(1977); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (same), cert.
denied, 423 U.S. 1050 (1976). Thus, any relief that Perez-Mirachal wishes to pursue is
available only in the criminal court that convicted him.
B
Perez-Mirachal also contends that the Board erred in affirming the Immigration
Judge’s denial of his motion for a continuance. Perez-Mirachal argues that the
Immigration Judge should have continued his removal proceedings, permitting him to
pursue his ineffective assistance of counsel claim on collateral attack. The Government
maintains that the Board was following relevant precedent in denying the motion for a
continuance.
An Immigration Judge “may grant a motion for continuance for good cause
shown.” 8 C.F.R. § 1003.29 (2006). We review the denial of a continuance for abuse of
discretion. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). The Immigration
Judge’s decision should be reversed only if it is arbitrary, irrational or contrary to law.
Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994). In Ponce-Leiva, this Court explained that
“‘[t]he question whether denial of a continuance in an immigration proceeding constitutes

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an abuse of discretion cannot be decided through the application of bright-line rules; it
must be resolved on a case by case basis according to the facts and circumstances of each
case.’” Ponce-Leiva, 331 F.3d at 377 (quoting Baires v. INS, 856 F.2d 89, 91 (9th
Cir.1988)).
Here, in denying Perez-Mirachal’s motion for a continuance, the Immigration
Judge relied upon the Board’s decision in Matter of Perez-Andreti, 19 I&N Dec. 433
(BIA 1987). In his decision, the Immigration Judge in this matter stated:
The Board of Immigration Appeals in Matter of Perez-
Andreti, 19 I&N Dec. 433 (BIA 1987), stated that it is not
good cause to request a continuance to await the results of a
collateral event which might occur in the future. The Court
feels that Perez-Andrati is directly on point with the matter
we have here today. We have no way of evaluating the
likelihood of success of the collateral attack. We have no way
of knowing when it might be forthcoming, that is to say when
a decision would be rendered by the courts in New York. In
fact, the application has not even been filed or motion or writ,
whatever the appropriate method of attacking the conviction
might be. In any event, the Court has been informed that the
process has not even begun. So for these reasons, the Court
feels that it would not be appropriate to grant the motion to
adjourn.
We conclude that the Immigration Judge did not abuse his discretion in denying
the motion for a continuance. At the time the motion for continuance was filed, Perez-
Mirachal had not yet filed any motions challenging his conviction in the criminal court.
Thus, the outcome of Perez-Mirachal’s proposed collateral attack was uncertain. It

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follows that the Board did not commit error in affirming the Immigration Judge’s
decision.
III
We will deny the petition and affirm the Board’s order.

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