Darren Bernard v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: GREENAWAY JR., GREENBERG and ROTH, Circuit Judges. Total Pages: 8. Bernard's motion for a stay of removal is denied as moot and his motion for the appointment of counsel is denied.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1573
___________
DARREN GERMER BERNARD,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A034-316-716)
Immigration Judge: Honorable Amit Chugh
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 9, 2016
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges
(Opinion filed: March 3, 2017)
___________
OPINION*
___________
PER CURIAM
Darren Germer Bernard petitions for review of the Board of Immigration Appeals’

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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(BIA) order dismissing his appeal from an immigration judge’s (IJ) decision denying his
application for relief under the Convention Against Torture (CAT). For the reasons that
follow, we will deny the petition.
Bernard, a citizen of Trinidad and Tobago, was admitted to the United States as a
lawful permanent resident (LPR) in 1974. In 1991, he was convicted in New York state
court of the criminal sale of a controlled substance in the fifth degree (cocaine) in
violation of N.Y. Penal Law (NYPL) § 220.31, and unlawful possession of a controlled
substance (marijuana) in violation of NYPL § 221.05. In 1995, Bernard traveled to
Trinidad for one week to attend his grandmother’s funeral; upon his return, he was
detained and subsequently paroled into the United States for exclusion proceedings.1 In
1997, Bernard was arrested for selling heroin; once released, he failed to appear for his
arraignment. In 2011, he was convicted of the criminal sale of a controlled substance in
the fifth degree, NYPL § 220.31, and bail jumping in violation of NYPL § 215.57, both
stemming from his 1997 arrest.
In 2013, Bernard was charged with being inadmissible as an alien who has been
convicted of a law of a state relating to a controlled substance pursuant to 8 U.S.C. §
1182(a)(2)(A)(i)(II), and as an illicit trafficker in controlled substances, 8 U.S.C. §
1182(a)(2)(C). An immigration judge determined that Bernard’s crimes were “serious”
and that he was, therefore, ineligible for relief, other than for deferral of removal under

1

For reasons unclear from the record, exclusion proceedings were not initiated until
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the CAT. See 8 U.S.C. §§ 1158(b)(2)(A)(ii) (an alien convicted of a “particularly serious
crime” is ineligible to apply for asylum), 1231(b)(3)(B)(ii) (similar); 8 C.F.R. §
1208.16(d)(2) (aliens ineligible for cancellation of removal under § 1231(b)(3)(B) are
ineligible for withholding of removal under the CAT). Bernard’s counsel conceded that
Bernard’s crimes were “serious” and that he was only eligible for relief under the CAT.
In his CAT application, Bernard maintained that, if he is returned to Trinidad, he will be
persecuted by criminal gangs and Islamic extremists that, he alleged, the government
there is either unable or unwilling to control. In September 2015, the Immigration Judge
(IJ) upheld the grounds for removal and denied Bernard’s application for relief after
determining that he was credible, but had not met his burden to prove that it was more
likely than not that he will be tortured if removed to Trinidad. The Board of Immigration
Appeals (BIA) affirmed the removal order, and this petition for review ensued.
Although we have jurisdiction to review final orders of removal, see 8 U.S.C. §
1252, we generally lack jurisdiction over final BIA decisions “ordering removal based on
the commission of an aggravated felony or a controlled substance offense.” Leslie v.
Att’y Gen., 611 F.3d 171, 174 (3d Cir. 2010). In such cases, our jurisdiction is limited to
reviewing constitutional claims and pure questions of law. Id. Ineffective assistance of
counsel during removal proceedings violates the Due Process Clause of the Fifth
Amendment, and claims predicated on such ineffectiveness are reviewed de novo.
Fadiga v. Att'y Gen., 488 F.3d 142, 153 (3d Cir. 2007).

2013.

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Bernard raised numerous ineffectiveness claims, arguing that his counsel failed to
present certain evidence and pursue certain arguments at the immigration proceedings.
To consider a claim for ineffective assistance of counsel, the BIA requires an alien to
provide (1) an affidavit setting forth in detail the agreement with former counsel
concerning what action would be taken and what counsel did or did not represent in this
regard; (2) proof that he notified his counsel of the allegation of ineffectiveness and
allowed counsel an opportunity to respond; and (3) a statement as to whether he filed a
complaint with any disciplinary authority regarding counsel’s conduct. See Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988); see also Fadiga, 488 F.3d at 155 (noting
that the Lozada requirements are a “threshold” to obtaining consideration of ineffective
assistance claims). We agree with the Board that Bernard failed to satisfy at least the first
two requirements of Lozada.2 Moreover, as the BIA properly concluded, even if he had
complied, he cannot show that counsel’s performance was deficient, or that he was
prejudiced as a result of counsel’s actions. See Fadiga, 488 F.3d at 159 (to establish

In his motion for a stay, Bernard maintained that he filed a complaint “to the
appropriate disciplinary authorities” regarding his counsel’s ineffectiveness. Although he
does not provide a copy of that complaint, the record includes a letter he wrote to the IJ –
prior to his hearing – complaining that his counsel was not adequately representing him,
and a letter to Bernard from the Executive Office for Immigration Review acknowledging
receipt of a complaint against his attorney alleging professional misconduct at the
immigration proceedings; the letter indicated that an investigation would be pursued.
A.R. at 25, 534. Bernard thus arguably satisfied the third prong of Lozada. See Xu Yong
Lu v. Ashcroft, 259 F.3d 127, 133-34 (3d Cir. 2001) (recognizing that strict compliance
with the Lozada requirements is not required where their purpose is fully served by other
means).
2

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ineffectiveness, petitioner must demonstrate that, but for counsel’s errors, there is a
reasonable likelihood that the result of the proceeding would have been different).
Bernard first challenges the Board’s finding that his counsel was not ineffective
for failing to object to the grounds for Bernard’s inadmissibility and his resulting
ineligibility to apply for asylum and withholding of removal.3 Specifically, he argues
that his 1991 conviction could not serve as the basis for his inadmissibility because the
INS erroneously “paroled” him into the United States in 1995, after only a brief absence
from the country, in violation of Rosenberg v. Fleuti, 374 U.S. 449 (1963). In Fleuti, the
Court held that, under the former § 101(a)(13) of the Immigration and Naturalization Act
(INA), LPRs were not required to seek “entry” upon their return from a brief trip abroad
and thus face exposure to a charge of being inadmissible. Id. at 461. The doctrine of
Fleuti was superseded by the Illegal Immigration Reform and Immigrant Responsibility

3

To the extent Bernard sought to raise a direct challenge to his removability, the claim is
waived. Bernard’s counsel conceded removability, and “[a]n alien is generally bound by
the actions of his attorney,” Calla-Collado v. Att’y Gen., 663 F.3d 680, 683 (3d Cir.
2011) (per curiam). There is an exception to this rule where the case presents “egregious
circumstances.” See In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986). This
exception “may apply to a concession that (1) was ‘the result of unreasonable
professional judgment,’ (2) was so unfair that it produced an unjust result, or (3) was
untrue or incorrect.” Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 982 (7th Cir. 2016)
(quoting and citing Velasquez, 19 I. & N. Dec. at 382-83); accord Santiago-Rodriguez v.
Holder, 657 F.3d 820, 831-32 (9th Cir. 2011). But see Hanna v. Holder, 740 F.3d 379,
387-88 (6th Cir. 2014) (viewing the third requirement noted above as merely a “threshold
matter,” and indicating that the alien must also show that one of the other two
requirements has been met). As the following analysis makes clear, there are no
egregious circumstances which would allow for withdrawal of his concession of
removability.
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Act (IIRIRA), under which an alien departing the country, even briefly, must seek
admission upon return. See Vartelas v. Holder, 132 S. Ct. 1479 (2012); see also Guzman
v. Att’y Gen., 770 F.3d 1077, 1086 (3d Cir. 2014) (“Prior to IIRIRA, lawful permanent
residents with a felony conviction were able to briefly travel abroad and return to the
United States without applying for readmission.”). Bernard argues that he “engaged in
no criminal activity after IIRIRA’s passage” in 1996, and his 1991 conviction could not
serve as the basis for inadmissibility under Fleuti. But the record indicates that Bernard
was initially detained upon reentry because of his failure to provide an I-551 card – his
permanent resident card (“green card”), and not on the basis of his conviction. At that
time, an alien was inadmissible if not “in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other valid entry document.” 8
U.S.C. § 1182(a)(7)(A) (1995).4 Once he was detained, Bernard’s criminal convictions
were noted upon secondary review, and he was paroled into the country. Under both the
INA and IIRIRA, temporary parole is not an admission. See 8 U.S.C. § 1182(d)(5).
Accordingly, as the BIA correctly determined, Bernard’s 2011 conviction for the criminal
sale of heroin, by itself, makes him ineligible for relief other than for deferral of removal
under CAT. As noted supra, this conviction was based on a December 1997 offense;
accordingly, Bernard’s alternative argument that his due process rights were violated

4

Although the Attorney General had discretion to readmit an alien who was inadmissible
under this provision, see 8 U.S.C. § 1181(b) (1995), such discretion was not exercised in
Bernard’s case.
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because immigration proceedings on the 1991 conviction were not initiated prior to April
1, 1997, under the former § 242 of the INA, is of no avail. See also Perez v. Elwood, 294
F.3d 552, 562 (3d Cir. 2002) (holding that Congress “removed the possibility of § 212(c)
relief for aliens who were convicted after . . . repeal of former INA § 212(c)”).
There is no merit to Bernard’s arguments that his counsel was ineffective for
failing to argue that the convictions do not qualify as “aggravated felonies.” Bernard was
not found removable based on the commission of an aggravated felony, but rather on a
conviction “relating to a controlled substance” and involving “illicit traffick[ing] in [a]
controlled substance.” Furthermore, Bernard failed to present any arguments before the
Board or this Court to rebut the presumption that his drug trafficking offense was a
“particularly serious crime.” See In re Y-L, 23 I. & N. Dec. 270, 276-77 (BIA 2002).
Nor was counsel ineffective in failing to seek a hardship waiver. See 8 U.S.C. § 1182(h)
(providing Attorney General discretion to waive inadmissibility for certain marijuana
offenses). There is also no merit to his contention that his counsel should have prepared
the CAT application “to reflect [Bernard’s] good moral character,” as such evidence
would have been irrelevant; rather, Bernard had to show a likelihood of torture by or with
the acquiescence of the Trinidadian government. See 8 C.F.R. § 208.16(c)(2); Sevoian v.
Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002).
Bernard’s remaining criticisms of his counsel’s performance are insufficient to
establish that he was prejudiced by his counsel’s actions. Although his counsel did not
present an expert witness, he did file numerous country reports and articles in an effort to
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establish that conditions in Trinidad, particularly with respect to the kidnapping by gangs,
amounted to torture. His failure to file the most recent country reports was remedied by
the IJ, who had them made part of the record at the proceedings. As the Board
concluded, the record fully supports the IJ’s determination that Bernard’s fear that he will
be kidnapped is speculative. While the country is experiencing significant increases in
kidnappings, the evidence does not suggest that they are so pervasive that Trinidadian
officials may be presumed to approve of them. Indeed, the record indicates that there
have been significant efforts to address the situation. See A.R. at 472 (The government
of Trinidad has developed a “National Policy” with the “overarching aim [ ] to bring
down crime significantly.”); id. at 473 (indicating that 13.9% of the government budget is
spent on security, including programs and initiatives to combat crime and violence, and
to expand police capacity). The ineffectiveness claim was therefore properly denied.
Based on the foregoing, we will deny the petition for review. Bernard’s motion
for a stay of removal is denied as moot and his motion for the appointment of counsel is
denied.

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