Martinez-Martinez v. Gonzales

Filing 920061128


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 28, 2006 Charles R. Fulbruge III Clerk No. 05-60626 Summary Calendar JOSE EZEQUIEL MARTINEZ-MARTINEZ, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. -------------------Petition for Review of an Order of the Board of Immigration Appeals BIA No. A41 272 217 -------------------Before KING, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Jose Ezequiel Martinez-Martinez (Martinez), a native and citizen of Mexico, filed a 28 U.S.C. 2241 petition in the district court challenging the Board of Immigration Appeals' (BIA) decision affirming the Immigration Judge's (IJ) denial of relief under former 212(c) of the Immigration and Nationality Act and the BIA's decision denying Martinez's motion to reopen based on ineffective assistance of counsel. The district court transferred the case to this Court pursuant to the REAL ID Act of 2005 and we now consider the matter as a petition for review of the BIA's Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * No. 05-60626 -2decisions. See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 126 S. Ct. 1055, 163 L. Ed. 2d 882 (2006). The REAL ID Act generally precludes judicial review of discretionary decisions of the Attorney General, including the grant or denial of a waiver of removability. 8 U.S.C. 1252(a)(2)(B)(ii); see Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). The Act also precludes judicial review of any removal order based on, inter alia, commission of an aggravated felony. 1252(a)(2)(c); see Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006), petition for cert. filed (Mar. 28, 2006) (No. 05-1251). construed as However, precluding none review of these provisions "shall claims be or of constitutional questions of law raised upon a petition for review . . . ." 1252(a)(2)(D). Martinez contends that the BIA erred when it affirmed the IJ's denial of his application for 212(c) relief. Although Martinez phrases his arguments in legal terms, he is, in essence, seeking review of the IJ's discretionary denial of 212(c) relief. See Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006). An IJ's discretionary denial of relief under 212(c) does not present a question of law or a constitutional claim over which this court has jurisdiction. Marquez-Marquez v. Gonzales, 455 F.3d 548, 561 (5th Cir. 2006). Therefore, we lack jurisdiction to review No. 05-60626 -3Martinez's challenge to the BIA's decision affirming the IJ's denial of his application for 212(c) relief. Martinez also contends that the BIA erred when it denied his motion to reopen based on ineffective assistance of counsel. Martinez argues that he had constitutionally protected liberty and property interests in his application for 212(c) relief and, thus, he was entitled to due process in the adjudication of that application. We have not conclusively determined whether an alien has a constitutional right to effective counsel in removal proceedings. See Gutierrez-Morales, 461 F.3d at 609. Nevertheless, we have "stated several times in dicta . . . 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." Id. (internal quotation marks and citations omitted). Even if aliens have a constitutional right to effective counsel in certain circumstances, Martinez does not allege a violation of due process. Martinez's ineffective assistance claim relates to the denial of his application for 212(c) relief. Because 212(c) relief is available within the broad discretion of the Attorney General, it is not a right protected by due process. United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002). His counsel's alleged deficiencies merely restricted Martinez's chance of obtaining discretionary relief under 212(c) and, No. 05-60626 -4therefore, Martinez has not alleged a violation of due process. See Assaad v. Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004); LopezOrtiz, 313 F.3d at 231. Because Martinez does not present a constitutional claim, we lack jurisdiction to review his challenge to the BIA's denial of his motion to reopen. Accordingly, the petition for review is dismissed for lack of jurisdiction. PETITION DISMISSED.

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