Singh v. Napolitano 649 F.3d 899

PER CURIAM Opinion; Dissent by Judge McKEOWN.

ORDER

The opinion filed on August 23, 2010 [619 F.3d 1101] is amended as follows:

On page 12609 [619 F.3d at 1104] of the slip opinion, line 5: Insert footnote ul” after the sentence that ends, “280.” The text of the footnote should read: “Where an agency’s adjudicatory action has a retroactive effect, we have applied a five-factor test to determine whether application of the new administrative decision would be “contrary” to “legal and equitable principles.” See Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). Nonetheless, because we conclude that application of Compean II to Singh would not have a retroactive effect under Landgraf, we need not reach the less stringent standard set forth in Montgomery Ward.”

With this amendment, no further motions or petitions may be filed.

OPINION

PER CURIAM:

Rajinder Singh appeals from the district court’s order denying 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 Femandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). In denying Singh’s habeas petition, the district court ruled that Singh failed to satisfy this prudential exhaustion 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. & N. Dec. 710 (A.G.2009). In that decision, Attorney General Mukasey concluded, inter alia, that the Board has “jurisdiction 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.

*901The Attorney General’s interpretation of the Board’s jurisdictional statute, 8 C.F.R. § 1008.2 (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. Dee. 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).

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 decision.” 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 proceedings 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.

Therefore, we must determine whether we may properly apply Compean II to Singh’s petition at the present time. In Landgraf v. USI Film Products, 511 U.S. 244, 263-80, 114 S.Ct. 1483, 128 L.Ed.2d 229 (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, 114 S.Ct. 1483, citing Bradley v. School Bd. of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (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.” Landgraf, 511 U.S. at 277, 114 S.Ct. 1483. 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, 114 S.Ct. 1483.1

*902None 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 administrative exhaustion doctrine, which is now at issue. Second, there is no concern that applying Compean II now would “increase [Singh’s] liability for past conduct.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. Third, we must consider whether retroactive application of Compean II would “impose [on Singh] new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. This final criteria draws on “[e]lementary considerations of fairness dictating] that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Id. at 265, 114 S.Ct. 1483. Thus, “familiar considerations of fair notice, reasonable rebanee, and settled expectations offer sound guidance” in evaluating whether Compean II would improperly impose “new duties” on Singh. Id. at 270, 114 S.Ct. 1483.

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 — U.S. -, 130 S.Ct. 350, 175 L.Ed.2d 4 (2009). In Afanwi, 526 F.3d at 795-96, the Fourth Circuit 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 petitioner 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).

Our decisions, along with those of other circuits, provided 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.

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 *903apply Compean 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 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 administrative 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 administrative 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 (A.G.2009) — that the BIA has jurisdiction over such claims — does not help matters. If anything, the majority’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 immigration proceedings. Time and again we see cases where petitioners 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 minimal standards of professional competence. Highlighting the unprofessional conduct of these lawyers is not meant to denigrate 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 dis*904trict 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 General’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 determine the scope of [its] discretion” over such claims. 25 I. & N. Dec. at 3.

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 discretion to reopen proceedings 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. 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 applicant.

In re Singh, [ A XXX XXX XXX ], at *2 (BIA Apr. 30, 2010) (citations omitted).

The BIA’s reference to its “different decisions” is something of a euphemism. As noted by the Attorney General and Fourth Circuit, the BIA’s position on this issue during the relevant time period was frankly contradictory. See Compean, 25 I. & N. Dec. at 3; Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710, 740 (A.G.2009) (noting that “the Board has not spoken consistently on the question of when deficient performance 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 second Compean decisions, sought to clean up the Board’s jurisdictional 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 XXX XXX XXX ], 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 *905BIA 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 remedies 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 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 jurisdiction 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, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).

The majority’s citation of our “precedent” on this issue is also unavailing. As the majority suggests, our previous statements 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 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 “[elemental considerations of fairness dictating] that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In Compean itself, the Attorney General explained that, prior to the Attorney General’s first Compean decision in 2008, the Board had not resolved the issue of its jurisdiction and that it was therefore necessary to decide this issue in definitive terms. 25 I. & N. Dec. at 3. Similarly, the Board has told us in *906this 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 XXX XXX XXX ], at *2-3. I am hard-pressed to imagine a clearer statement 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.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483, if the agency itself had no firm position. The lack of clarity regarding the remedies 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

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 ineffective assistance claim. This resolution follows from the jurisdictional murkiness that existed when Singh filed in district court. The only avenue this remedy provides is an opportunity, not a guarantee, to pursue a claim forfeited by a lawyer who failed to filed a timely notice of appeal.