UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 6th day of October, two thousand.
PRESENT: HON. JOSEPH M. McLAUGHLIN,
HON. DENNIS JACOBS, HON. CHESTER J. STRAUB, Circuit Judges.
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STEVE O. STEWART,
IMMIGRATION AND NATURALIZATION SERVICE,
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APPEARING FOR APPELLANT: Michael G. Moore, Springfield, Massachusetts
APPEARING FOR APPELLEE: James K. Filan, Jr., Assistant United States Attorney, New Haven, Connecticut (Stephen C. Robinson, United States Attorney for the District of Connecticut, David W. Ogden, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., on the brief)
Appeal from the United States District Court for the District of Connecticut (Droney, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Steve O. Stewart appeals from the judgment of the United States District Court for the District of Connecticut (Droney, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition sought an order remanding his case to the Board of Immigration Appeals ("BIA") for a hearing on his application for a waiver of deportation. On appeal, Stewart argues for remand principally on the ground that his prior counsel was constitutionally ineffective.
The following facts are undisputed. Stewart, a native and citizen of Jamaica, entered the U.S. as a lawful permanent resident in September 1978. During the next five and one-half years, he was convicted of three narcotics offenses:
. On June 15, 1981, he was convicted of possession of a controlled substance, in violation of Connecticut General Statutes § 19-481C.
. On September 9, 1981, he was convicted of possession of a controlled substance, in violation of Connecticut General Statutes § 19-481C.
. On December 1, 1983, he was convicted of possession of a controlled substance with intent to sell, in violation of Connecticut General Statutes § 21a-279(b).
As a result of these and other criminal acts, petitioner was incarcerated in state prisons through September 1998.
On January 8, 1991, the Immigration and Naturalization Service (INS) issued an Order to Show Cause, alleging that Stewart was deportable due to his narcotics convictions. At a hearing before an Immigration Judge ("IJ") on April 23, 1991 Stewart conceded deportability, but his counsel announced that he would file an application for waiver of deportation pursuant to what was then § 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C.A. § 1182(c) (West 1991) (repealed 1996). The IJ granted thirty days for submission of the waiver application, but stated on the record that if no application were submitted, he would "make a decision on the record as it stands." No waiver application was filed. On July 11, 1991 the IJ dismissed Stewart's waiver application "for lack of prosecution" and ordered that he be deported.
Petitioner's counsel immediately appealed to the BIA, arguing that the failure to file the waiver application was his fault alone, not petitioner's. The BIA affirmed the IJ's denial of relief for failure to prosecute. The BIA also rejected Stewart's ineffective assistance of counsel claim. Stewart now appeals the district court's denial of habeas corpus relief, arguing that his attorney's failure to timely file the waiver application was constitutionally ineffective.
Although deportation hearings are civil proceedings, we have recognized a claim for ineffective assistance of counsel based on the Due Process Clause. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994). To prevail on this claim, Stewart "must show that his counsel's performance was so ineffective as to have impinged upon the fundamental fairness" of the immigration proceeding in violation of due process. Id. "In order to show a deprivation of fundamental fairness," Stewart must allege facts sufficient to show "1) that competent counsel would have acted otherwise, and 2) that he was prejudiced by his counsel's performance." Id. (internal quotation marks omitted). We reject Stewart's claim because we conclude that he cannot show prejudice.
Rabiu concerned a similar claim. An IJ had ordered Rabiu's deportation after his attorney failed to timely file an application for a waiver of deportation under INA § 212(c). See Rabiu, 41 F.3d at 881. To show "actual prejudice" resulting from his attorney's failure, Rabiu had to "make a prima facie showing that  he would have been eligible for the relief and  that he could have made a strong showing in support of his application." Id. at 882.
To determine whether Stewart could have made a "strong showing" in support of an application for relief, we review the factors that an IJ evaluates when considering a § 212(c) application. In conducting the evaluation, the IJ must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country. Adverse factors include: the nature and circumstances of the exclusion ground at issue, the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident. Favorable considerations include: family ties within this country, residence of long duration in this country, evidence of hardship to the alien and alien's family upon deportation, Armed Forces service, employment history, community service, property or business ties, evidence attesting to good character, and, in the case of one convicted of criminal conduct, proof of genuine rehabilitation.
Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995) (internal citations and quotation marks omitted). As petitioner concedes, his convictions for multiple narcotics offenses mean that he would have to "make a showing of unusual or outstanding countervailing equities to obtain a waiver of deportation." Id. (emphasis added) (citing Correa v. Thornburgh, 901 F.2d 1166, 1170 (2d Cir. 1990)). He identifies no such equities.
Shortly after entering this country, Stewart embarked on a career in the narcotics industry, and was convicted of drug offenses three times in his first five and one-half years as a U.S. resident. He also has had numerous other encounters with law enforcement, leading the district court to conclude that petitioner has an "extensive additional criminal history" (emphasis added). Petitioner argues that the equities favor him due to the number of years he has spent in the U.S. But he spent a large portion of his time in this country as an inmate of various prisons, so the argument cuts two ways. Petitioner also points out that he has family members in the U.S. (although he has no children), that separation from his family will be emotionally difficult, that he will have trouble finding work in Jamaica, that he completed programs while in prison "to help him overcome drug dependence and violent behavior," and that he "has been working" since his release from prison in September 1998. None of these factors are extraordinary. Viewed in light of petitioner's criminal history, these circumstances (if shown) would not provide "strong support" for an argument that petitioner's equities are "unusual or outstanding."
We therefore conclude that petitioner was not prejudiced by his counsel's failure to file a timely waiver application.
We have considered all of petitioner's contentions on this appeal and have found them to be without merit. The judgment of the district court is hereby AFFIRMED.