United States v. 2010-08-23 | 07-16988 | SINGH V. NAPOLITANO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RAJINDER PAL SINGH,
Petitioner-Appellant, No. 07-16988
v. D.C. No.
 JANET NAPOLITANO;* NANCY CV-07-03943-MMC
ALCANTAR; ERIC H. HOLDER JR.,** OPINION
Attorney General,
Respondents-Appellees. 
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
January 13, 2009—San Francisco, California
Filed August 23, 2010
Before: J. Clifford Wallace, Jerome Farris and
M. Margaret McKeown, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge McKeown
*Janet Napolitano has been substituted for her predecessor, Michael
Chertoff, as Secretary of Homeland Security. Fed. R. App. P. 43(c)(2).
**Eric H. Holder Jr. has been substituted for his predecessor, Alberto
Gonzales, as Attorney General. Fed. R. App. P. 43(c)(2).
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COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner-
appellant.
Joseph P. Rusoniello, United States Attorney; Joann M.
Swanson, Assistant United States Attorney; Edward Olsen,
Assistant United States Attorney, San Francisco, California,
for the respondents-appellees.
OPINION
PER CURIAM:
Rajinder Singh appeals from the district court’s order deny-
ing his petition for habeas corpus, filed pursuant to 28 U.S.C.
§ 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We affirm.
In order to seek habeas relief under section 2241, as Singh
does, a petitioner must first, “as a prudential matter,” exhaust
his or her available administrative remedies. See Castro-
Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), overruled
on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S.
30 (2006). In denying Singh’s habeas petition, the district
court ruled that Singh failed to satisfy this prudential exhaus-
tion requirement because he did not first raise his ineffective
assistance of counsel claim before the Board of Immigration
Appeals (Board). Singh argues that he should not be required
to raise his claim first with the Board because the Board lacks
jurisdiction to review such claims where, as here, the alleged
ineffective assistance occurred after a final order of removal
has been entered.
I.
While this case was pending before us, former Attorney
General Mukasey decided In re Compean (Compean I), 24 I
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& N Dec. 710 (A.G. 2009). In that decision, Attorney General
Mukasey concluded, inter alia, that the Board has “jurisdic-
tion to consider deficient performance claims even where they
are predicated on lawyer conduct that occurred after a final
order of removal has been entered.” Id. at 740. Subsequently,
Attorney General Holder vacated Compean I in its entirety. In
re Compean (Compean II), 25 I & N Dec. 1, 3 (A.G. 2009).
However, Attorney General Holder agreed that the Board’s
“discretion to reopen removal proceedings includes the power
to consider claims of ineffective assistance of counsel based
on conduct of counsel that occurred after a final order of
removal had been entered.” Id.
The Attorney General’s interpretation of the Board’s juris-
dictional statute, 8 C.F.R. § 1003.2 (2008), is reasonable, and
we therefore defer to it. See Barapind v. Reno, 225 F.3d 1100,
1113-14 (9th Cir. 2000) (holding that we review an agency’s
interpretation of the regulations governing its jurisdiction for
reasonableness). Under this authoritative interpretation, the
Board had jurisdiction to hear Singh’s ineffective assistance
claim, and Singh’s petition would fail for failure to exhaust
this administrative remedy. However, Compean II was
decided after Singh filed his habeas petition.
In light of Compean II, we remanded this case to the Board.
In our limited remand order, we stated:
The case is remanded to the Board of Immigration
Appeals for the limited purpose of ruling upon
whether the Board had jurisdiction to hear Singh’s
ineffective assistance of counsel claims and what
effect, if any, the Attorney General’s recent opinion
in In re Compean, 25 I & N Dec. 1, 3 (A.G. 2009),
has on this case. The Board shall advise this court of
any action or decision.
Singh v. Napolitano, 577 F.3d 988, 988-89 (9th Cir. 2009).
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The Board has now replied to our limited remand order. In
its response, the Board points out that throughout the course
of Singh’s proceedings the regulations provided that the
Board may reopen “any case in which it has rendered a deci-
sion.” The Board states that it had jurisdiction to hear Singh’s
ineffective assistance of counsel claim “if one had been
advanced in a motion.” The Board recognizes, at the same
time, that during the relevant period it “had not resolved in a
published decision whether its discretion to reopen proceed-
ings included the power to consider claims of ineffective
assistance of counsel based on conduct of counsel after an
administratively final order had been entered and the Board
had issued different decisions on this issue.” The Board states
that, as a factual matter, it “did regularly reissue decisions
where a lack of notice of the Board’s original decision
resulted either from administrative error at the Board or from
ineffective assistance of counsel.” Thus, the Board concludes,
it cannot “state definitively how a motion raising such a claim
would have been adjudicated years ago in this case . . . .”
Finally, the Board states that the Compean II case “had no
meaningful effect on this case because there has never been
a motion pending before the Board in these proceedings.”
II.
[1] Therefore, we must determine whether we may prop-
erly apply Compean II to Singh’s petition at the present time.
In Landgraf v. USI Film Products, 511 U.S. 244, 263-80
(1994), the Supreme Court offered guidance to courts faced
with the prospect of applying new law to pending cases. In
that case, the Court sought to resolve the “apparent tension”
between its prior admonition to apply the law in effect at the
time of decision, with the equally long-standing presumption
against the retroactive application of newly enacted laws and
regulations. Id. at 263, citing Bradley v. School Bd. of Rich-
mond, 416 U.S. 696 (1974). In that regard, the Court clarified
that a new law should not apply to cases heard prior to its
enactment if the law has “genuinely ‘retroactive’ effect.”
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Landgraf, 511 U.S. at 277. That is, a new law will not apply
if “it would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.” Id. at
280.
[2] None of these “genuinely retroactive” conditions exist
in this appeal. First, application of Compean II to this case
would not “impair rights [Singh] possessed when he acted”
because no such rights are at stake here. Singh’s right to bring
a habeas petition is conditioned upon our prudential adminis-
trative exhaustion doctrine, which is now at issue. Second,
there is no concern that applying Compean II now would “in-
crease [Singh’s] liability for past conduct.” Landgraf, 511
U.S. at 280. Third, we must consider whether retroactive
application of Compean II would “impose [on Singh] new
duties with respect to transactions already completed.” Land-
graf, 511 U.S. at 280. This final criteria draws on
“[e]lementary considerations of fairness dictat[ing] that indi-
viduals should have an opportunity to know what the law is
and to conform their conduct accordingly.” Id. at 265. Thus,
“familiar considerations of fair notice, reasonable reliance,
and settled expectations offer sound guidance” in evaluating
whether Compean II would improperly impose “new duties”
on Singh. Id. at 270.
[3] Prior to Compean II, the Board ruled inconsistently on
the issue of its jurisdiction to review deficient performance
claims concerning post-final order attorney conduct. See
Afanwi v. Mukasey, 526 F.3d 788, 795 nn.25-26 (4th Cir.
2008) (citing contradictory Board decisions), vacated 130 S.
Ct. 350 (2009). In Afanwi, 526 F.3d at 795-96, the Fourth Cir-
cuit held that the Board does not have such jurisdiction.
Whatever the merits of the Fourth Circuit’s position, however,
we have twice stated, in unequivocal language, that the Board
does have jurisdiction to hear claims such as Singh’s. See
Lata v. INS, 204 F.3d 1241, 1245-46 (9th Cir. 2000) (“[T]he
Board has laid out a comprehensive procedure that a peti-
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tioner should follow to support [an ineffective assistance]
claim”); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042,
1044 n.4 (9th Cir. 2000) (“A claim of ineffective assistance
of counsel occurring after the Board has ruled may be raised
with the Board by filing a motion to reopen”).
In both instances, our language may have been inessential
dicta. See Lata, 204 F.3d at 1245-46; Dearinger, 232 F.3d at
1044 n.4. Nevertheless, our meaning was clear, and we have
not contradicted it. Other circuits have since adopted the same
position. See Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir.
2006); Sako v. Gonzales, 434 F.3d 857, 862-66 (6th Cir.
2006); Firmansjah v. Ashcroft, 347 F.3d 625, 627 (7th Cir.
2003).
[4] Our decisions, along with those of other circuits, pro-
vided Singh fair notice and the ability to anticipate that the
Board may have jurisdiction over his claim. Thus, we hold
that Compean II, which affirmed our language in Lata and
Dearinger, does not create “new duties” for Singh with
respect to his habeas petition.
[5] For these reasons, we conclude that applying Compean
II to this case would not have genuinely retroactive effect.
The prudential exhaustion doctrine is well established, and
was neither new nor unanticipated. While an authoritative
declaration that the Board has jurisdiction to hear ineffective
assistance of counsel claims may be new, it simply confirmed
our prior statements on the subject. We therefore apply Com-
pean and conclude that Singh did not exhaust his available
administrative remedies because he did not first file a motion
to reopen with the Board before bringing his habeas petition
in district court.
At oral argument, Singh presented a new argument. He
argued that failure to exhaust should be excused, because he
had already been removed from the country, and a post-
departure motion to reopen a removal hearing is futile. Singh
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did not raise this futility argument before the district court.
“Generally, an issue raised for the first time on appeal is
deemed waived.” WildWest Inst. v. Bull, 547 F.3d 1162, 1172
(9th Cir. 2008). We deem the argument waived.
AFFIRMED.
McKEOWN, Circuit Judge, Dissenting:
I respectfully dissent. The heart of Singh’s claim is that his
counsel failed to notify him of the final decision of the Board
of Immigration Appeals (“BIA”) and failed to preserve his
right to judicial review by the Ninth Circuit. The question is
whether Singh was required to exhaust this claim at the BIA
before filing his habeas corpus petition in federal court. I
would hold that he was not required to do so—at the time
Singh filed his habeas petition, there was no clear administra-
tive option to exhaust.
The majority reaches the opposite conclusion by refusing to
take the BIA at its word and relying instead on scattered dicta
from our precedents. Rather than trying to read between the
lines as to BIA practice or policy, we remanded this petition
to the BIA so that the BIA could tell us whether Singh had the
option to file a motion to reopen in order to pursue his claim.
The BIA explained on remand that it was uncertain at best
whether a motion to reopen was available to Singh to raise his
ineffective assistance claim at the time he filed his habeas
petition. By requiring that Singh seek reopening nonetheless,
the majority holds Singh responsible for exhausting an admin-
istrative remedy that the BIA itself acknowledges may not
even have existed. The majority’s retroactive application of
the Attorney General’s holding in Matter of Compean, 25
I&N Dec. 1, 3 (AG 2009)—that the BIA has jurisdiction over
such claims—does not help matters. If anything, the majori-
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ty’s approach highlights the formerly confused state of the
law and the unfairness of requiring exhaustion of Singh.
The questions of exhaustion and access to relief through a
motion to reopen are not inconsequential nor are they abstract
procedural issues. Time and again we see under-
representation and poor quality of representation in immigra-
tion proceedings. Time and again we see cases where petition-
ers have retained counsel who failed to file a timely notice of
appeal.
These unfortunate cases represent the classic “good news,
bad news” scenario: the good news is that the petitioner had
a lawyer; the bad news is that the petitioner had a lawyer. The
positive note is that individuals facing the potentially dire
consequences of deportation managed to retain counsel to
help them navigate the complicated U.S. immigration legal
system, but the tragic consequence and the bad news is that
some of these lawyers fail to conform to even the most mini-
mal standards of professional competence. Highlighting the
unprofessional conduct of these lawyers is not meant to deni-
grate in any way the many extraordinary immigration lawyers
who practice before us. Rather, this discussion underscores
the importance of having a meaningful remedy when a lawyer
misses an appeal deadline through no fault of the client.
We remanded this case to the BIA to clarify the predicate
question to the district court’s holding on exhaustion: namely,
whether the BIA even had jurisdiction in the first place to
entertain the claim Singh sought to raise on habeas. We also
asked the BIA to address the application of the Attorney Gen-
eral’s intervening decision in Compean, 25 I&N Dec. at 3,
that the BIA may hear claims of ineffective assistance based
on counsel’s conduct after entry of a final order of removal.
Singh v. Napolitano, 577 F.3d 988, 988-89 (9th Cir. 2009).
Notably, Compean expressly “[left] it to the Board to deter-
mine the scope of [its] discretion” over such claims. 25 I&N
Dec. at 3.
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The Board’s response on remand, although qualified,1
counsels that it is unreasonable to hold Singh to an exhaustion
requirement here. Most importantly, the Board confirmed that
its jurisdiction over ineffective assistance claims concerning
counsel’s conduct after entry of a removal order was unclear
at the time Singh filed his habeas petition. Thus, the Board
could not determine with certainty whether it would have
adjudicated Singh’s claim on a motion to reopen. As the
Board explained:
During the relevant period, the Board had not
resolved in a published decision whether its discre-
tion to reopen proceedings included the power to
consider claims of ineffective assistance of counsel
based on conduct of counsel after an administra-
tively final order had been entered and the Board had
issued different decisions on this issue. Thus, we
cannot state definitively how a motion raising such
a claim would have been adjudicated in the absence
of a motion actually having been filed by the appli-
cant.
In re Singh, A 071 789 054, at *2 (BIA Apr. 30, 2010) (cita-
tions omitted).
The BIA’s reference to its “different decisions” is some-
thing of a euphemism. As noted by the Attorney General and
Fourth Circuit, the BIA’s position on this issue during the rel-
evant time period was frankly contradictory. See Compean, 25
I&N Dec. at 3; Matter of Compean, Bangalay & J-E-C-, 24
I&N Dec. 710, 740 (AG 2009) (noting that “the Board has not
spoken consistently on the question of when deficient perfor-
1The Board emphasized that because Singh never filed a motion to
reopen, its opinion was “necessarily theoretical” and that it could not
“state with certainty how any hypothetical motion would have been adju-
dicated had such a motion been filed.” In re Singh, A 071 789 054, at *2
(BIA Apr. 30, 2010).
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mance must occur to permit reopening”); Afanwi v. Mukasey,
526 F.3d 788, 795-96 (4th Cir. 2008) (noting that the Board
“has issued contradictory opinions on the subject” and citing
cases). As a result, the Attorney General, in the first and sec-
ond Compean decisions, sought to clean up the Board’s juris-
dictional mess by ruling, in definitive terms, that the Board
had jurisdiction to hear such claims on a motion to reopen.
Compean, 25 I&N Dec. at 3; Compean, 24 I&N Dec. at 739-
41. Here, however, the Board declined on remand to address
whether Compean applies retroactively to Singh’s case or, if
it did, whether the Board’s jurisdiction under Compean
extended to Singh’s claim. In re Singh, A 071 789 054, at *2.
At bottom, the BIA’s answer to our question regarding its
jurisdiction thus seems to be “we can’t be sure.”2 If the BIA
is uncertain, then surely it is unreasonable to impute certainty
to Singh. In my view, the BIA’s jurisdiction over Singh’s
claim was not sufficiently clear such that he can be held
responsible for raising his claim on a motion to reopen. See
Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (noting
that exhaustion may be waived “where administrative reme-
dies are inadequate or not efficacious”) (internal quotation
marks omitted). The Board has explained that it simply cannot
know whether it had the authority to hear Singh’s claim
because it took no principled position on the issue during the
relevant time period. It is therefore totally up in the air
whether the remedy that Singh was putatively required to
exhaust even existed.
Although the majority purports to defer to the agency’s
interpretation of its own jurisdiction, it ignores the BIA when
2The BIA also noted, incoherently, that the “pertinent regulations” pro-
vided the BIA with “jurisdiction to hear [Singh’s] ineffective assistance of
counsel claim if one had been advanced in a motion.” In re Singh, A 071
789 054, at *2 (citing 8 C.F.R. § 1003.2(a)). I presume that the BIA means
to say that despite its general authority to hear ineffective assistance
claims on a motion to reopen, its jurisdiction over Singh’s claim was
unclear.
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it tells us that it can’t know whether it would have even heard
Singh’s claim. The majority’s approach effectively requires
that individuals like Singh fight threshold battles over juris-
diction and pursue remedies whose existence is in doubt in
order to exhaust their claims. But that is not the law. Rather,
habeas petitioners are prudentially required to exhaust only
“available” administrative remedies—not remedies whose
existence is disputed. See Castro-Cortez v. INS, 239 F.3d
1037, 1047 (9th Cir. 2001) (emphasis added), overruled on
other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
(2006).
The majority’s citation of our “precedent” on this issue is
also unavailing. As the majority suggests, our previous state-
ments regarding the availability of motions to reopen were at
best “inessential dicta.” See Lata v. INS, 204 F.3d 1241, 1245-
46 (9th Cir. 2000); Dearinger ex rel, Volkova v. Reno, 232
F.3d 1042, 1044 n.4 (9th Cir. 2000).3 Although one might
have preferred that the BIA would have adhered to our dicta
on its jurisdiction, rejected these statements in a reasoned
decision, or, indeed, taken any coherent position on this issue,
one thing is certain: in the face of Lata and Dearinger, the
fate of Singh’s claim at the Board remained uncertain. The
Board itself has told us so.
This lack of clarity makes the retroactive application of
Compean inappropriate. In applying Compean retroactively,
the majority acknowledges the murky state of affairs at the
Board during the relevant time period. But the majority fails
to appreciate that this very murkiness makes Compean’s
3In Lata, we assumed, without analysis, that the petitioner could have
raised her ineffective assistance claim on a motion to reopen and sug-
gested that she was required to exhaust such remedies, but held that, in
any event, she failed to show prejudice from counsel’s conduct. Lata, 204
F.3d at 1245-46. In Dearinger, we cited Lata for the proposition that a
motion to reopen was available, but the petitioner’s failure to exhaust it
“[did] not bar this court from hearing the claim.” Dearinger, 232 F.3d at
1044 n.4.
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application to this case impermissible. Because the BIA’s
jurisdiction was hitherto uncertain, the retroactive application
of Compean stands to “impose [on Singh] new duties with
respect to transactions” already completed and conflicts with
“[e]lemental considerations of fairness dictat[ing] that indi-
viduals should have an opportunity to know what the law is
and to conform their conduct accordingly.” Landsgraf v. USI
Film Prods., 511 U.S. 244, 265, 280 (1994). In Compean
itself, the Attorney General explained that, prior to the Attor-
ney General’s first Compean decision in 2008, the Board had
not resolved the issue of its jurisdiction and that it was there-
fore necessary to decide this issue in definitive terms. 25 I&N
at 3. Similarly, the Board has told us in this case that it took
contradictory positions on its jurisdiction and cannot “state
definitively” whether it would have heard Singh’s claim and
that Compean has since resolved this issue. In re Singh, A 071
789 054, at *2-3. I am hard-pressed to imagine a clearer state-
ment of the jurisdictional fog that existed at the time Singh
came to seek habeas relief. Surely there was no way for Singh
to “know what the law [was] and to conform [his] conduct
accordingly.” Landsgraf, 511 U.S. at 265, if the agency itself
had no firm position. The lack of clarity regarding the reme-
dies available to Singh at the time he filed his petition makes
the imposition of an exhaustion requirement on him now
unjustified. We should not see light where none existed, nor
should we project it retrospectively.4
4As an aside, I note that, Compean notwithstanding, it is still unclear
that the Board will afford Singh a remedy. Singh has been removed from
the United States. Although we have held that Singh is nonetheless entitled
by regulation to a post-departure motion to reopen, see Lin v. Gonzales,
473 F.3d 979, 982 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491
F.3d 1001, 1002 (9th Cir. 2007), the BIA has rejected our analysis and
held that it lacks authority to reopen proceedings once a non-citizen has
left the United States after the completion of removal proceedings. Matter
of Armendarez-Mendez, 24 I&N Dec. 646, 650-52 (BIA 2008) (construing
8 C.F.R. § 1003.2(d)). The BIA has expressly “decline[d] to follow [Lin
and Reynoso-Cisneros] even within the Ninth Circuit.” Id. at 652 (empha-
sis added).
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In view of the BIA’s response to us, I would reverse the
district court’s dismissal of Singh’s habeas petition for lack of
exhaustion and remand for a ruling on the merits of his inef-
fective assistance claim. This resolution follows from the
jurisdictional murkiness that existed when Singh filed in dis-
trict court. The only avenue this remedy provides is an oppor-
tunity, not a guarantee, to pursue a claim forfeited by a lawyer
who failed to filed a timely notice of appeal.
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