Unpublished Disposition, 923 F.2d 861 (9th Cir. 1988)

No. 88-7344.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and BEEZER, Circuit Judges, and KLEINFELD,^*  District Judge.

MEMORANDUM^** 

Chavez-Torres petitions for review of the Board of Immigration Appeals' (BIA's) decision affirming an order of deportation and denying a motion to reopen. Chavez-Torres contends he was denied due process through ineffective assistance of counsel. The BIA disagreed. We affirm.

* Chavez-Torres, a native and citizen of Mexico, entered the United States as a permanent resident in 1967. In 1979, he was convicted in California of attempted murder. In 1984, he was convicted in California of assault with a deadly weapon.

On August 1, 1986, the INS ordered Chavez-Torres to show cause why he should not be deported. Chavez-Torres retained George Siddell, a San Diego attorney and paid Siddell $200 to move for a change of venue in the case from San Francisco to San Diego, where Chavez-Torres maintained his residence.

At the deportation hearing held in San Francisco on September 24, 1986, Chavez-Torres, represented by attorney Walter Pineda, admitted all the factual allegations in the order to show cause, conceded deportability and requested 60 days to apply for a discretionary waiver of deportation under section 212(c) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(c) (1988). The Immigration Judge gave Chavez-Torres until January 15, 1987 to submit his application for a waiver under section 212.

No application for a waiver was filed; no motion for a change of venue was submitted. On January 28, 1987, Chavez-Torres was ordered deported.

II

On February 13, 1987, Chavez-Torres, through his attorney, Siddell, filed a timely appeal with the BIA, stating he failed to apply for a waiver because he had not been granted a change of venue from San Francisco to San Diego. The appeal included an application under section 212 and indicated a separate brief would be filed. No brief was filed. The BIA rejected Chavez-Torres's appeal and denied his motion to reopen. The BIA found that the facts alleged by Chavez-Torres were available at the time of the original hearing and that the facts did not support a claim for ineffective assistance of counsel.

Chavez-Torres claims ineffective assistance of counsel because Siddell (1) never filed a brief in support of the appeal, (2) improperly attached to the appeal a request for section 212 relief, (3) failed to cite either his prior ineffective assistance (i.e., not timely filing for change of venue or for section 212 relief) or miscommunication between Siddell and Pineda (about responsibility for the conduct of the case) as the basis for remanding to the Immigration Judge. Siddell, in a sworn declaration, stated he "was of the opinion that the applicant had abandoned interest in a change of venue and that Mr. Pineda had taken over the case." Chavez-Torres and Pineda dispute Siddell's assertion. Their story is supported by a receipt from Siddell to Chavez-Torres for $50 dated December 2, 1988, after the time Siddell contends Pineda took over the case.

III

To prevail on a claim of ineffective assistance of counsel as a violation of the due process clause of the fifth amendment, Chavez-Torres must show assistance so ineffective as to impinge upon fundamental fairness. Ramirez-Durazo v. INS, 794 F.2d 491, 500 (9th Cir. 1986). In rejecting the ineffective assistance claim, the BIA relied on Chavez-Torres's affidavit. The Board concluded from the affidavit (1) that Chavez-Torres had not retained Siddell to do any more than move for a change of venue and (2) that Chavez-Torres never informed Siddell of the outcome of the San Francisco hearing and the filing deadline. The Board relied on those facts in concluding that Chavez-Torres' predicament resulted from his failure to communicate with Siddell and his neglect in not notifying Siddell of the outcome of the September hearing and of his desire for further representation. Chavez-Torres also alleged he believed Siddell was "in charge of his case." We agree with the BIA that Chavez-Torres has failed to set forth a claim for denial of due process through ineffective assistance of counsel. On review, we decline to disturb the findings and decisions of the Board of Immigration Appeals.

AFFIRMED.