                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2008

Thiodoris v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3820




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                                                  NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 06-3820


   YOSEPH THIODORIS; KLAUDIA CHRISTINA MURTINI;
MAGDALENA INES THIORESTA; REGINA FLORENCIA FERTHIO

                                            Petitioners

                                  v.

      ATTORNEY GENERAL OF THE UNITED STATES;
  SECRETARY OF DEPARTMENT OF HOMELAND SECURITY

                                            Respondents

                      __________________

             On Petition for Review of an Order of the
                 Board of Immigration Appeals
           (Agency Nos. A95-190-410/411/412 and 413)

                      __________________

           Submitted under Third Circuit LAR 34.1 (a)
                       on March 4, 2008


 Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges

                  (Opinion filed: May 27, 2008)




                         OPINION
ROTH, Circuit Judge:

       Yoseph Thiodoris, his wife Klaudia Christina Murtini, and their children, Magdalena

Ines Thioresta and Regina Florencia Ferthio (Petitioners), seek review of a decision by the

Board of Immigration Appeals (BIA) declining to reopen their appeal from an order of

deportation. Petitioners argue that they were denied effective assistance of counsel as a

result of their decision to use an immigration consultant for certain phases of their application

for asylum instead of hiring an attorney. Finding no error, we will deny the petition for

review.

I. BACKGROUND

       Petitioners are citizens of Indonesia and practicing Christians. Petitioner Yoseph

Thiodoris is ethnically Chinese, while his wife is ethnically Javanese. Petitioners entered

the United States in July of 2001 on tourist visas, and applied for asylum in October of

2001. They were then placed in removal proceedings when a Notice to Appear was

served upon them on January 13, 2003. At a hearing on February 25, 2003, the

Immigration Judge (IJ) strongly suggested that Petitioners retain an attorney and stop

using the non-lawyer immigration consultant who had been helping them prepare their

papers up until that point. When the hearing resumed on June 17, 2003, Petitioners

appeared with an attorney, who continued to represent them throughout the proceedings

before the IJ. The IJ denied their application for asylum and withholding of deportation

in an oral decision issued on July 28, 2004.



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       Petitioners, acting pro se, appealed the IJ’s decision to the BIA. On appeal, they

argued that the immigration judge inappropriately forced them to use an attorney, that the

attorney they retained provided ineffective assistance, and that the IJ erred in his

substantive evaluation of their claim. The BIA dismissed Petitioners’ appeal on

December 27, 2005. Petitioners did not petition for review of the BIA’s decision; they

now claim that their immigration consultant promised to do so and then failed to file the

appropriate papers.

       Petitioners filed this motion to reopen with the BIA on March 27, 2006. The BIA

denied the motion to reopen on July 20, 2006. Petitioners filed a timely petition for

review with this Court on August 21, 2006.

       We have jurisdiction to review the BIA’s denial of the motion to reopen pursuant

to 8 U.S.C. § 1252 (2005), as amended by The REAL ID Act of 2005, § 106, Pub. L. No.

109-13, Div. B, 119 Stat 231, which confers exclusive jurisdiction on the courts of

appeals to review final orders of removal. Petitioners’ petition for review was timely

filed and venue is proper because the proceedings before the IJ were concluded in

Philadelphia, Pennsylvania.

       We review the BIA’s denial of a motion to reopen only for abuse of discretion.

Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). Under the abuse of discretion

standard, the BIA’s decision is reversible only if it is “arbitrary, irrational, or contrary to

law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). We review constitutional



                                                3
issues and legal questions under the de novo standard, giving deference under Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the

BIA’s interpretation of the Immigration and Nationality Act, where appropriate. See

Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002); Ilchuk v. Att’y Gen., 434 F.3d 618,

621 (3d Cir. 2006), INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

II. DISCUSSION

       Petitioners contend that they were provided ineffective assistance of counsel by the

immigration consultant that they hired to assist them in preparing their application for

asylum before they retained an attorney and to assist them in prosecuting their appeal

after the IJ ruled against them. They specifically argue that the consultant was ineffective

because (1) he provided legal advice despite a clause in the consulting agreement stating

that the consultant could not “give legal advice or provide legal services” and (2) the

consultant promised to file a petition for review of the BIA’s denial of Petitioners’ appeal

and then failed to do so.

       We have not addressed in a precedential opinion the issue of whether relief may be

granted for ineffective assistance by an immigration consultant, and we do not need to do

so here. Any prejudice created by ineffective assistance prior to the February 2003

hearing was cured when the IJ held open the hearing and allowed Petitioners to re-file

their papers after consulting with an attorney. Lack of prejudice would be fatal to a claim

of ineffective assistance by an attorney, and we see no reason why the right would be



                                             4
defined more broadly when applied to the conduct of an immigration consultant. See

Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005). Similarly, Petitioners cannot

complain about the handling of their appeal to the BIA because there is no constitutional

right to effective assistance of counsel in civil proceedings at the appellate level. See

Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).

       There remains the issue of whether the consultant’s failure to file a petition for

review by this Court after promising to do constitutes an extraordinary circumstance

warranting the reopening of Petitioners’ case. While the consultant’s behavior resembles

behavior that the Ninth Circuit has found to constitute an extraordinary circumstance, see,

e.g., Lopez v. INS, 184 F.3d 1097, 1099-1101 (9th Cir. 1999) (finding extraordinary

circumstances where an individual posing as an attorney promised to appear on

immigrant’s behalf at a hearing, informed the immigrant that he need not attend, and then

failed to appear, resulting in a ruling of deporting in absentia), the failure to file for a

second level of appellate review is far less prejudicial than the failure to appear at a

deportation hearing. In addition, it is not clear how Petitioners could have reasonably

relied upon a non-attorney to file a legal brief on their behalf with this Court.

Considering the totality of the circumstances, we cannot conclude that the BIA abused its

discretion by declining to reopen Petitioners’ case.

III. CONCLUSION

       For the foregoing reasons, we will deny the petition for review.



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