                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3191




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                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 05-3191
                                      ___________

                                    JOY P. COOKE,

                                            Petitioner

                                            v.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,

                                             Respondent

                                      ___________

                         Petition for Review of an Order of the
                             Board of Immigration Appeals

                                 (No. A91-309-549 )
                           Immigration Judge: Henry S. Dogin
                                     ___________

                               ARGUED APRIL 26, 2006

          BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judges,
                         and YOHN,* District Judge.


                                  (Filed May 31, 2006)
                                      ___________




         *Honorable William H. Yohn, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
Ruchi Thaker, Esq. (Argued)
Bretz & Coven
305 Broadway, Suite 100
New York, NY 10007
            Counsel for Petitioner


Donna A. Krappa, Esq. (Argued)
Office of the United States Attorney
970 Borad Street, Room 700
Newark, NJ 07102
              Counsel for Respondent

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Joy Cooke appeals the Board of Immigration and Appeals’ order denying

her motion to reopen her immigration proceeding. Because we conclude that the BIA

failed to address her claim that the Immigration Judge erred by failing to advise her of her

“apparent eligibility” for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. §

1182(h), we will grant Cooke’s petition for review and remand the cause to the BIA.

                                             I.

              Joy Cooke, a native and citizen of Jamaica, gained admittance as a lawful

permanent resident (“LPR”) in the United States in 1991. She has three children who are

United States citizens, ages 21, 14, and 10. She is married to a United States citizen

although they do not currently live together. She is the primary caretaker of her three

                                             2
children and is employed as a healthcare worker. Beginning in 1991 and continuing over

the next eight years, Cooke was convicted approximately ten times of petit larceny,

attempted petit larceny, shoplifting, and receiving stolen property under New York and

New Jersey laws. However, none of these convictions were felonies. She served jail time

for only two of these convictions. She has not been convicted of any crime since 1999.

              At some point before 2001, Cooke left the United States for a short trip to

Jamaica. Upon returning to the United States at Newark International Airport, the

Immigration and Naturalization Service issued a Notice to Appear against her. The

Notice advised her that the INS was instituting deportation proceedings against her and

charged her as an arriving alien who was inadmissible to the United States under INA §

212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime

involving moral turpitude.

              After being issued the Notice, Cooke hired a New York attorney to

represent her in connection with her deportation proceeding. As her attorney, he was

responsible for advising her of any forms of relief from removal for which she might be

eligible. But, at no time after he was retained and engaged with her case, nor at the

removal hearings did he ever advise Cooke that she was eligible for a waiver under INA §

212(h), 8 U.S.C. § 1182(h), as a returning lawful permanent resident with more than

seven years’ residency, no aggravated felony convictions, and a qualifying relative.




                                             3
               In fact, at the removal hearings the IJ discussed with her attorney the forms

of relief for which Cooke might have been eligible. In response, her attorney applied for

cancellation of removal for Cooke under INA § 240A, 8 U.S.C. § 1229b, which the IJ

properly denied because Cooke was statutorily ineligible. The IJ then questioned Cooke’s

attorney as to whether there was any other form of relief for which Cooke might be

eligible and the attorney replied in the negative.

               After the hearing, the IJ issued a written decision denying Cooke’s

application for cancellation of removal pursuant to § 240A, and, never raising the

possibility of relief under § 212(h), ordered Cooke removed to Jamaica. Cooke appealed

the decision to the BIA, still not raising the § 212(h) possibility for relief. The BIA

affirmed the IJ’s order.

               After consulting with new attorneys, Cooke discovered that she could have

applied for § 212(h) relief. She then filed a timely motion to reopen with the BIA,

arguing that she had received ineffective assistance of counsel because her attorney had

failed to apply for § 212(h) relief on her behalf. Additionally, she argued that the IJ

should have recognized her “apparent eligibility” for § 212(h) relief and, pursuant to 8

C.F.R. § 1240.11 (formerly 8 C.F.R. § 240.11), was required to advise her that she was

eligible to apply for it.

               The BIA denied Cooke’s motion to reopen. It concluded, without

discussion, that the “motion does not demonstrate that [Cooke] is eligible for [INA §



                                              4
212(h)] relief.” 1 Additionally, the BIA held that Cooke’s proceeding “did not merit

reopening as a matter of discretion” because “it is highly unlikely that Cooke would be

granted relief from removal.” Consequently, the BIA rejected Cooke’s ineffective

assistance of counsel claim.

              Cooke filed a petition for a writ of habeas corpus, challenging the BIA’s

order of removal. Cooke’s habeas petition contended that: (1) the IJ and the BIA violated

her right to due process because they failed to follow the regulation requiring IJs to

inform aliens of their apparent eligibility for relief; (2) her right to due process was

violated due to ineffective assistance of counsel; and (3) the BIA violated her right to due

process because it “failed to follow case law.” However, under § 106 of the REAL ID



1.      The BIA’s decision reads in full:
               The respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to reopen
        our decision dated December 17, 2002. The respondent claims ineffective
        assistance of former counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA
        1988), aff’d, 857 F.2d 10 (1 st Cir. 1988). She declares that her former counsel
        failed to seek relief on her behalf for which she was eligible, specifically relief
        under section 212(h) of the Immigration and Nationality Act on the basis of
        extreme hardship to her United States citizen children. See Matter of Mendez, 21
        I&N Dec. 296 (BIA 1996). However, her motion does not demonstrate that she
        is eligible for such relief.

              Moreover, the respondent has not shown that she merits reopening as a
        matter of discretion. The respondent has ten larceny-related convictions since the
        mid-1980's. Given this history of criminal activity and disregard for this
        country’s laws, it is highly unlikely that she would be granted relief from
        removal, even if she were eligible to be considered for relief. Accordingly, we
        find that the respondent has not established a claim of ineffective assistance of
        counsel to warrant reopening in this case. See Matter of Assad, 23 I&N Dec. 553
        (BIA 2003). The motion is denied.

                                              5
Act, the United States district courts no longer have jurisdiction over habeas petitions.

Under § 106(c)), her habeas petition was transferred to the court of appeals and converted

from a habeas petition to a petition for direct review pursuant to section 242(a) of the

INA. See Bonhometre v. Gonzalez, 414 F.3d 442, 446 (3d Cir. 2005). Accordingly, and

because Cooke’s petition poses questions of law, we have jurisdiction to review. See

Singh v. Gonzalez, 432 F.3d 533, 537 (3d Cir. 2006).

                                             II.

              We review a denial of a motion to reopen an immigration proceeding for

abuse of discretion. See Zheng v. Gonzalez, 422 F.3d 98, 106 (3d Cir. 2005) (“Motions to

reopen immigration proceedings are viewed with strong disfavor, and we review the

BIA’s decision to deny the reopening for abuse of discretion, mindful of the broad

deference that the Supreme Court would have us afford.”) (quoting Xu Long Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001)) (internal quotations omitted).

“Discretionary decisions of the Board will not be disturbed unless that are found to be

arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).

              To determine whether a Board decision is arbitrary, irrational, or contrary

to law, we must be able to discern both that the BIA addressed the alien’s claims and that

its reasons for the decision are clearly expressed. Awolesi v. Ashcroft, 341 F.3d 227, 233

(3d Cir. 2003) (citing Bastidas v. INS, 609 F.2d 101, 105 (3d Cir. 1979)). Thus, where



                                             6
the Board fails to adequately address some claim made by the alien in her motion to

reopen, or where it addresses that claim but fails to clearly articulate its reasons for its

finding, we cannot review the Board’s decision and will remand for reconsideration. See

id. at 232 (“In order for [the Court] to be able to give meaningful review to the [Board]’s

decision, [the Court] must have some insight into its reasoning.”); Tipu, 20 F.3d at 586

(“[T]he Board failed to consider one of the factors in Tipu’s favor, a practice which in

Sotto v. INS resulted in a remand for reconsideration.”); see also INS v. Ventura, 537 U.S.

12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (“A court of appeals is not generally

empowered to conduct a de novo inquiry into the matter being reviewed and to reach its

own conclusions based on such an inquiry. Rather, the proper course, except in rare

circumstances is to remand to the agency for additional investigation or explanation.”)

(internal citations and quotations omitted).

              Here, the BIA failed to address Cooke’s first claim that the IJ was required

to address her “apparent eligibility” for relief under § 212(h) relief. The government does

not respond to this, other than to argue that Cooke was not eligible for section 212(h)

relief and, even assuming arguendo that she was, the BIA was within its discretion to

deny her motion to reopen.2 This misses the mark. The issue here is not whether Cooke




2.       The BIA’s failure to address the existence of Cooke’s apparent eligibility claim
precludes our ability to determine the basis for its decision. At this juncture, the
government’s assertion that the BIA rejected this claim on the grounds of ineligibility and
discretion is only speculative.

                                               7
was ultimately eligible for section 212(h) relief or whether, assuming she was, the IJ

should have granted her such relief. Rather, the issue here is the BIA’s responsibility to

address all of an alien’s claims of error. Cooke’s first allegation of error was that the IJ

failed to advise her of her “apparent eligibility” for section 212(h) relief and there is

nothing in the BIA’s opinion addressing this claim.

              To trigger an IJ’s obligation to inform an alien concerning her “apparent

eligibility” of some form of relief, the alien must meet the threshold requirements for such

relief. Moran-Enriquez v. INS, 884 F.2d 420, 422 (9 th Cir. 1989). Cooke offers

meritorious reasons both for why the IJ was required to advise her of her apparent

eligibility for section 212(h) relief, see 8 C.F.R. § 1240.11(a)(2), and for her apparent

eligibility. She also argues that the record establishes that she met the statutory

requirements for eligibility of section 212(h) relief. We, however, are not the appropriate

forum to review or address in the first instance her contention. Ventura, 537 U.S. at 16,

123 S.Ct. at 355. Instead, it is appropriate that we remand to the BIA so that it may

address Cooke’s claim that she was eligible for section 212(h) relief and that the IJ failed

to advise her of her apparent eligibility, in violation of 8 C.F.R. § 1240.11(a)(2).3

                                             III.




3.       Because we grant Cooke’s petition for review based on the BIA’s clear error in
failing to address her “apparent eligibility” claim, we do not reach the merits of Cooke’s
ineffective assistance of counsel claim at this time.

                                               8
             We will grant Cooke’s petition for review, vacate the BIA’s May 30, 2003

decision denying her motion to reopen, and remand the cause to the BIA for further

proceedings consistent with this opinion.




                                            9
