                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
                          REVISED JULY 27, 2006
                                                                     July 5, 2006
                  IN THE UNITED STATES COURT OF APPEALS
                                                                Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                         Clerk


                                No. 04-51143



RUPERTO GUTIERREZ-MORALES,

                                                     Petitioner-Appellant
versus


TOM HOMAN, ETC., ET AL.,

                                                    Respondents-Appellees



            Appeal from the United States District Court
                  for the Western District of Texas



Before SMITH, WIENER & STEWART, Circuit Judges.

WIENER, Circuit Judge:

     Ruperto      Gutierrez-Morales   (“Gutierrez”)     petitions    us   for

review of the Board of Immigration Appeals’ (“BIA”) decision

declining to reopen his removal proceedings.             At issue is (1)

whether    this   court   has   jurisdiction   to   entertain   Gutierrez’s

appeal, and (2) if so, whether Gutierrez is entitled to relief from

his order of deportation on the basis of ineffective assistance of

counsel.

                          I. FACTS & PROCEEDINGS

A.   Gutierrez’s Removal Order
      Gutierrez, a native and citizen of Mexico, has lived in the

United States since his admission as a lawful permanent resident in

1997.      Later that year, Gutierrez was convicted of aiding and

abetting the entry of illegal aliens into the United States in

violation of 8 U.S.C. § 1325.           Although Gutierrez’s offense made

him removable under the Immigration and Nationality Act (“INA”),

removal proceedings were not initiated against him until 2001, when

Gutierrez briefly traveled to Mexico from the United States.                     On

his     return,    Gutierrez    was    arrested     and    placed   in    removal

proceedings.

      Before      the   Immigration    Judge     (“IJ”),   Gutierrez      did   not

challenge his removability.            Instead, he sought to apply for a

discretionary waiver of removal under § 240A of the INA,1 which

authorizes the Attorney General to cancel a permanent resident

alien’s removal when, inter alia, the alien’s deportation would

cause family hardship.2          The IJ ordered Gutierrez to file his

application for § 240A relief by June 24, 2002.               Gutierrez failed

to do so and, as a result, the IJ held that Gutierrez had abandoned

his application and ordered him removed from the United States.

      The next day, Gutierrez’s lawyer filed a motion with the IJ to

reopen Gutierrez’s removal proceedings. In support of this motion,

Gutierrez     argued    that   his    lawyer’s    health   problems      prevented


      1
          8 U.S.C. § 1229b(a).
      2
          Gutierrez’s wife and child are United States citizens.

                                         2
counsel        from   filing    the    §    240A   relief     application     on   time.

Unconvinced, the IJ denied the motion.                  The IJ reasoned in part

that,     to    the    extent   that       Gutierrez   was    alleging      ineffective

assistance of counsel, he had not satisfied the BIA’s procedural

requirements for bringing an ineffective assistance of counsel

claim.3         In    July   2003,    the   BIA    affirmed    the   IJ’s    denial   of

Gutierrez’s motion to reopen and dismissed Gutierrez’s appeal.

B.   Gutierrez’s First Set of Challenges to His Removal Order

     1.         Petition for Review

     In August 2003, Gutierrez made his first trip to this court,

petitioning us to review the BIA’s July 2003 decision affirming the

IJ’s denial of his motion to reopen.4                        We affirmed the BIA’s

decision in an unpublished opinion. Specifically, we determined



     3
       See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). In
Lozada, the BIA held that it would consider granting a motion to
reopen on grounds of ineffective assistance of counsel only if
the alien (1) supported the motion by an affidavit in which he
details the allegedly ineffective assistance of his counsel, (2)
informed his counsel of the allegations of ineffectiveness and
gave the counsel an opportunity to respond, and (3) if
appropriate, filed a disciplinary complaint with his counsel’s
bar authorities. We held that the application of the
Lozada requirements is not an abuse of discretion in Lara v.
Trominski, 216 F.3d 487, 498 (5th Cir. 2000).
     4
       In addition to petitioning this court for review of the
BIA’s July 2003 decision, Gutierrez also filed two motions with
the BIA aimed at overturning that decision: a motion to
reconsider the BIA’s denial of his appeal and a motion to reopen
his proceedings before the BIA. The BIA denied these two motions
on October 31, 2003, and March 9, 2004, respectively; and
Gutierrez did not petition this court to review either of those
denials.

                                              3
that the IJ properly denied Gutierrez’s motion to reopen “because

[Gutierrez] was informed of his right to apply for cancellation of

removal, and he was provided an opportunity to do so.              Thus, the

[IJ] did not violate [Gutierrez’s] due process rights.”5

     2.     Habeas Corpus

     Hedging his bets, Gutierrez filed a concurrent habeas petition

in the Western District of Texas challenging his removal order.

The district court denied Gutierrez’s habeas petition, ruling,

inter     alia,   that   (1)   because   §   240A    relief   is    entirely

discretionary, no interest in that relief is protected by the Due

Process Clause; and, alternatively, (2) because Gutierrez had yet

to comply with the BIA’s Lozada requirements, he could not present

his ineffective assistance of counsel claim.            Gutierrez did not

appeal the district court’s denial of his first habeas petition to

this court.

C.   Gutierrez’s Second Set of Parallel Challenges to His Removal
     Order

     Undeterred by his failure to obtain relief from removal,

Gutierrez initiated a new round of challenges.           After firing his

lawyer and employing new counsel, Gutierrez returned to the BIA on

May 11, 2004, with a new motion to reopen.          Gutierrez’s new motion

urged the BIA to exercise its authority to reopen his removal




     5
       Gutierrez-Morales v. Ashcroft, 96 Fed. Appx. 206, 207 (5th
Cir. 2004) (unpublished per curiam opinion).

                                     4
proceedings sua sponte.6    Gutierrez contended that his initial

lawyer’s assistance had been constitutionally ineffective because

he missed the deadline for filing Gutierrez’s application for

waiver of removal.   Notably, the record reflects that by the time

Gutierrez filed this new motion to reopen, he had complied with

Lozada’s procedural requirements.

     On September 1, 2004, the BIA denied Gutierrez’s motion to

reopen.   Specifically, the BIA held that Gutierrez’s case did not

present the type of exceptional circumstances that warrant the sua

sponte reopening of removal proceedings.

     To challenge this BIA decision, Gutierrez took a belt-and-

suspenders approach, filing both a habeas action in the Western

District of Texas and a petition for review in this court.        We

dismissed Gutierrez’s petition for review because he filed it on

October 4, 2004, more than 30 days after the BIA’s order, thus

making his petition untimely and depriving us of jurisdiction.7

     In contrast, Gutierrez filed his habeas petition on September

23, 2004, within 30 days following the BIA’s order.      In it, he

challenged the BIA’s decision on grounds of ineffective assistance

of counsel.   The district court dismissed the petition for lack of

jurisdiction because, at that time, we had not yet ruled on

     6
       See 8 C.F.R. § 1003.2 (2005) (“The Board may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision.”).
     7
       See Gutierrez-Morales v. Ashcroft, No. 04-60886, at 1 (5th
Cir. Nov. 9, 2004) (unpublished order).

                                 5
Gutierrez’s above-mentioned petition for review challenging the

same BIA     decision.     Thus,    the    district   court   concluded   that

Gutierrez had not exhausted his administrative remedies, depriving

that court of jurisdiction.        It is to appeal this decision of the

district court —— its dismissal of his September 2004 habeas

petition on jurisdictional grounds —— for which Gutierrez makes his

third trip to this court.

                                II. ANALYSIS

A.   Petition for Review

     While Gutierrez’s appeal was pending, Congress enacted the

REAL ID Act on May 11, 2005.              The Act retroactively “divested

federal courts of jurisdiction over § 2241 [habeas] petitions

attacking removal orders.”8        Section 106 instructs district courts

to transfer pending habeas challenges to the appropriate court of

appeals and instructs courts of appeals to “treat the transferred

case[s] as if [they] had been filed pursuant to a petition for

review.”9      As   we   have   previously     noted,   however,   “Congress

neglected . . . to specify what was to happen to habeas petitions

that were already on appeal as of the REAL ID Act’s effective

date.”10     We filled this gap, declaring that “despite Congress’s


     8
       Rosales v. Bureau of Immigration & Customs Enforcement,
426 F.3d 733, 736 (5th Cir. 2005); see REAL ID Act § 106, Pub. L.
No. 109-13, 119 Stat. 231 (2005).
     9
          REAL ID Act § 106(c).
     10
          Rosales, 426 F.3d at 736 (emphasis added).

                                      6
silence on this issue, habeas petitions on appeal as of May 11,

2005, . . . are properly converted into petitions for review.”11

     As Gutierrez’s habeas petition was pending on May 11, 2005, we

treat     it    as   a   petition   for   review.     In    determining   whether

Gutierrez       properly    filed   his   petition    for    habeas   corpus   cum

petition for review, we look to the date on which he filed his

habeas petition in the district court.              That date is September 23,

2004 —— before the expiration of his 30-day window to seek review

of the BIA’s denial of his motion to reopen.                   Accordingly, the

converted petition for review is timely.

B.   Successive Petition

     This is Gutierrez’s third petition for review.                   Courts have

jurisdiction to entertain successive petitions for review only in

limited circumstances.          Specifically, under 8 U.S.C. § 1252(d),

     a court may review a final order of removal only if ——

     (1)       the alien has exhausted all administrative remedies
               available to the alien as of right, and
     (2)       another court has not decided the validity of the
               order, unless the reviewing court finds that the
               petition presents grounds that could not have been
               presented in the prior judicial proceeding or that
               the remedy provided by the prior proceeding was
               inadequate or ineffective to test the validity of
               the order.12

Although this is Gutierrez’s third trip through the system, we find

that he could not have presented his ineffective assistance of


     11
          Id.
     12
          Emphasis added.

                                          7
counsel claim until now.

     When Gutierrez filed his first petition for review, the

factual basis for his ineffective assistance of counsel claim

existed.    Gutierrez, however, could not have reasonably presented

that claim because he was still represented by the very same

counsel    whom     he    now   claims       was    ineffective.            It    would    be

unreasonable       to    require     an    alien    to     comply    with    Lozada,      the

necessary prerequisite to an ineffective assistance of counsel

claim     before        the   BIA,    while        still     under     that       counsel’s

representation.

     Gutierrez could not have presented his claim of ineffective

assistance of counsel in his second petition for review because it

was not timely filed.           We therefore did not have jurisdiction to

reach the merits of his claim.               Accordingly, the plain terms of §

1252(d)(2) permit us to consider the instant petition and the claim

of ineffective assistance of counsel it advances.                            As we shall

explain, however, this is at most a Pyrrhic victory for Gutierrez.

C.   Discretionary Relief

     Under 8 U.S.C. § 1252(a)(2)(B)(ii), we have no jurisdiction to

review “any decision or action of the Attorney General” on relief

that is left to the discretion of the Attorney General.                               Section

1252's     jurisdiction-stripping             provisions,           however,      are     not

absolute.         Specifically,           under    §     1252(a)(2)(D),          we    retain

jurisdiction to review “constitutional claims or questions of law.”



                                             8
Accordingly,       as    Gutierrez   presents       a    constitutional      claim    of

ineffective assistance of counsel, we have jurisdiction to review

it on the merits.

     At the outset, we note that this court has never squarely held

that an alien has “a constitutional right to effective counsel in

removal proceedings.”13           We have stated several times in dicta,

however, that an alien’s “right to due process is violated when

‘the representation afforded [him] was so deficient as to impinge

upon the fundamental fairness of the hearing,’ and, as a result,

the alien suffered substantial prejudice.’”14                     We assume here for

the sake of argument that such a right exists.

     Even     if    we    assume     that       aliens    have    a   constitutional

entitlement        to    effective      assistance         of     counsel    in     some

circumstances, those before us today are not among them.                         This is

because     “‘the       failure    to   receive          relief    that     is    purely

discretionary in nature does not amount to a deprivation of a




     13
       Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004)
(quoting Patel v. United States Attorney Gen., 334 F.3d 1259,
1262 (11th Cir. 2003) (emphasis added)).
     14
       Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (quoting
Paul v. INS, 521 F.2d 194, 198 (5th Cir. 1975)) (internal
citations omitted). See also Assaad, 378 F.3d at 475
(Ineffective assistance of counsel may violate an alien’s right
to due process under the Fifth Amendment “if the ‘representation
afforded [the alien]... was so deficient as to impinge upon the
fundamental fairness of the hearing.’”) (quoting Paul, 521 F.2d
at 198).

                                            9
liberty interest.’”15    Concomitantly, when there is no due process

right to the ultimate relief sought, there is no due process right

to effective assistance of counsel in pursuit of that relief.16

Here, Gutierrez seeks a waiver of removal from the Attorney General

on the basis of family hardship —— ultimate relief that is purely

discretionary.   Accordingly, Gutierrez has no right to effective

assistance of counsel in pursuing that waiver.

     Gutierrez attempts to distinguish his case from Assaad on the

ground that   Assaad    had    an   opportunity    to   present   his   waiver

application for consideration on the merits through a formal

hearing with the IJ; Gutierrez, on the other hand, did not have any

opportunity to present his waiver application on its merits to

either the IJ or BIA.         This, however, is a classic distinction

without a difference.    We have squarely held that “neither            relief

from removal under discretionary waiver nor eligibility for such

discretionary relief is entitled to due process protection.”17

Stated differently, an alien has no due process right to a hearing

to   determine   his    eligibility        for   relief   that    is    purely



     15
       Assaad, 378 F.3d at 475 (quoting Mejia Rodriguez v. Reno,
178 F.3d 1189, 1146 (11th Cir. 1999)).
     16
       Id. (concluding that an alien’s due process rights were
not infringed by allegedly constitutionally ineffective
assistance of counsel because the relief sought was purely
discretionary).
     17
       Nguyen v. Dist. Dir., Bureau of Immigration and Customs
Enforcement, 400 F.3d 255, 259 (5th Cir. 2005) (emphasis in
original).

                                      10
discretionary.18    By parity of reasoning, such an alien also has no

right to effective assistance of counsel in seeking to obtain such

a hearing.      Thus, Gutierrez’s argument fails.

                            III.   CONCLUSION

     As Gutierrez has no right to effective assistance of counsel

in obtaining a discretionary waiver of removal from the Attorney

General, his petition for review is

DISMISSED and outstanding motions are DENIED.




     18
          Id.

                                    11
