Gutierrez v. Ashcroft

2003 US Dist LEXIS 19421

Petitioner Luis Gutierrez came to the United States as a legal resident at age seven.  He later committed five burglaries and was imprisoned for his actions.  While in prison, Gutierrez was served with Notice to Appear in Removal Proceedings.  In 1998, an Immigration Judge ordered Gutierrez removed and deemed him ineligible for any relief from removal.  The Board of Immigration Appeals, by a 3-2 vote, denied Gutierrez’s request that he be found eligible for discretionary relief under §212(c) of the Immigration and Nationality Act.  The BIA relied on the Antiterrorism and Effective Death Penalty Act of 1996 to hold that aggravated felons were ineligible for such relief.  Then, in 2001, the Supreme Court held that such retroactive denial of an INA §212(c) hearing to be unconstitutional in INS v. St. Cyr.  INS v. St. Cyr, 533 U.S. 289. 

The United States District Court in New Jersey found after his removal that Gutierrez had conveyed to his attorney to pursue all possible appeal options.  While his attorney did represent to Gutierrez that he had filed a habeas petition, the only appeal option available, the attorney in fact did not file any appeals.  Gutierrez filed a habeas petition after removal, but the U.S. District Court denied the request and dismissed the case for lack of subject matter jurisdiction because Gutierrez was not in custody at the time he filed the appeal. 

In the present action, Gutierrez filed a Motion to Make New Findings and to Alter or Amend the Judgment on the basis of Federal Rules of Civil Procedure 52(b) and 59(e). Gutierrez’s attorney only had one business day to file a habeas claim before Gutierrez was removed.  The attorney claimed to be awaiting the outcome of a habeas appeal in another similar case and when that case was decided in the negative, the attorney decided that it was not worthwhile to file the habeas petition for Gutierrez - without telling his client.  The Court found that the evidence “strongly negated” any inference that Gutierrez had instructed his attorney to not proceed with the appeal.  In fact, the Court found that the evidence, including testimony from Gutierrez’s wife and mother, weighed in favor of Gutierrez believing that the habeas petition was pending.

The Court found that the attorney misled Gutierrez and misrepresented to Gutierrez that he had filed a habeas petition.  The Court ruled that Gutierrez was clearly prejudiced by ineffective assistance of counsel due to his attorney’s failure to file for §212(c) relief while holding out to Gutierrez and his family that he had in fact filed the necessary paperwork.  The Court also held that the attorney understood that the Gutierrez family believed that an appeal was in the process and never attempted to correct them. 

The Court also found that if the attorney had filed a habeas petition, Gutierrez would have had a strong chance of success following the St. Cyr case.  The Court granted Gutierrez’s motion and ruled that the only relief that prevented substantial injustice was to deem Gutierrez’s habeas petition to have been filed prior to his deportation since this was when he believed the petition had been filed.  The Judge also ordered that Gutierrez be provided with a §212(c) hearing.