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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
98-35861 11/15/00 



Petitioners-Appellees,                                No. 98-35861

v.                                                    D.C. No.
JANET RENO, Attorney General of
the United States, and                                OPINION

Appeal from the United States District Court
for the Western District of Washington
William L. Dwyer, District Judge, Presiding

Submitted April 24, 20001
San Francisco, California

Filed November 15, 2000

Before: Betty B. Fletcher, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Hawkins
1 The panel finds this case appropriate for submission without oral argu-
ment pursuant to Fed. R. App. P. 34(a)(2).


David J. Dearinger and Victor Litovchenko, petitioners pro

John L. Davis, Office of Immigration Litigation, Civil Divi-
sion, Department of Justice, Washington, D.C., for the


HAWKINS, Circuit Judge:

The government appeals from the district court's grant of
a writ of habeas corpus to David Dearinger and Victor Litov-
chenko on behalf of Natalia Volkova. The district court
directed the government to reissue the order of deportation so
that Volkova has a new thirty-day period in which to appeal
the Board of Immigration Appeals' (BIA) denial of her claim
for asylum and withholding of deportation to the Ninth Cir-
cuit. The government argues that the district court lacked
jurisdiction over the petition, and that it erred in finding inef-
fective assistance of counsel. We affirm the district court's
finding of jurisdiction and grant of the petition.


Volkova entered the United States on May 20, 1993 on a
six-month tourist visa. She applied for asylum on June 22,
1993. The Asylum Officer denied asylum. Volkova over-
stayed her tourist visa, and on October 12, 1995, the INS
issued an order to show cause charging Volkova as being
deportable pursuant to 8 U.S.C. S 1231(a)(1)(B) for overstay-
ing her tourist visa. She applied for asylum, withholding of
deportation, and voluntary departure.

The Immigration Judge ("IJ") held a hearing on October
10, 1996. The IJ found that Volkova was generally credible
and that she had suffered past persecution on the basis of her
religion. The IJ also found, however, that she had not shown
a well-founded fear of future persecution because country
conditions in her native Ukraine had changed considerably.2
2 Volkova contended that she was stateless because she was not a citizen
of the Ukraine (where she was born), nor of Estonia (where she lived for
12 years before coming to the United States). The IJ found that if neither
the Ukraine nor Estonia would accept her, she could not be expelled from
the United States.


As such, the IJ denied asylum and withholding of deportation
and granted voluntary departure. Volkova timely appealed to
the BIA, which affirmed the IJ on August 12, 1997.

After the BIA's affirmance, Volkova obtained new counsel.
This new counsel filed a petition for review of the BIA deci-
sion in this court one day late. The government moved to dis-
miss for untimely filing of the appeal. This court dismissed
the petition, Volkova v. INS, No. 97-71026 (9th Cir. Decem-
ber 3, 1997).

On March 16, 2000, David Dearinger and Victor Litov-
chenko, next friends of Volkova (collectively, the "Friends")
filed a petition for habeas corpus in the district court. The dis-
trict court concluded that (1) the Friends had standing to make
this claim as next friends of Volkova; (2) it had jurisdiction
over the petition; and (3) Volkova's counsel provided ineffec-
tive assistance. The district court granted the petition and
ordered the government to reenter the BIA's order denying
the appeal and restart the thirty-day period for filing the peti-
tion for review in the court of appeals. The government
appeals, claiming that the district court did not have jurisdic-
tion over the habeas petition and that the claim of ineffective
assistance of counsel fails.


I. Jurisdiction

The Friends assert that the district court had jurisdiction
over this habeas petition pursuant to 28 U.S.C.S 2241, and
that this court has jurisdiction under 28 U.S.C.S 2253. The
INS argues that S 306 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L.
No. 104-208, 110 Stat. 3009 (1996), deprives this court of
jurisdiction over this matter. We review determinations of
jurisdiction de novo. See Lucky v. Calderon, 86 F.3d 923, 925
(9th Cir. 1996).


IIRIRA S 306 added a new section to the Immigration and
Nationality Act, INA S 242(g), codified at 8 U.S.C. S 1252(g),
which restricts judicial review of deportation orders:3

      Except as provided in this section and notwithstand-
      ing any other provision of law, no court shall have
      jurisdiction to hear any cause or claim by or on
      behalf of any alien arising from the decision or
      action by the Attorney General to commence pro-
      ceedings, adjudicate cases, or execute removal
      orders against any alien under this Act.

[1] The INS argues that direct review of the BIA's decision
in this court was Volkova's only avenue of relief, and that
INA S 242(g) precludes the district court from exercising
habeas jurisdiction over the matter. We disagree. In Magana-
Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999), we decided
that "neither AEDPA nor IIRIRA repealed statutory habeas
remedies other than INA S 106(a)(10). Thus, 28 U.S.C.
S 2241 remains an available remedy to those challenging
executive detention." 200 F.3d at 609. Under Magana-Pizano,
therefore, the district court properly exercised jurisdiction
over this habeas petition pursuant to 28 U.S.C.S 2241.

II. Ineffective Assistance of Counsel

The government contends that the district court erred in
finding that Volkova's counsel rendered ineffective assistance.4
We review claims of ineffective assistance of counsel de
novo. See Jackson v. Calderon, 211 F.3d 1148, 1154 (9th Cir.
3 IIRIRA specifically provides for retroactive application of INA
S 242(g). See IIRIRA SS 306(c)(1), 309(c)(1) and (4), as amended by Pub.
L. No. 104-302.
4 A claim of ineffective assistance of counsel occurring after the BIA has
ruled may be raised with the BIA by filing a motion to reopen. See Lata
v. INS, 204 F.3d 1241, 1245-46 (9th Cir. 2000). However, failure to do so
does not bar this court from hearing the claim. See id.


[2] There is no constitutional right to counsel in deportation
proceedings. See Castro-Nuno v. INS, 577 F.2d 577, 578 (9th
Cir. 1978). Due process, however, must be accorded. See
United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.
1978). Thus, any right to counsel in a deportation proceeding
arises under the Fifth Amendment right to due process. See
Ramirez-Durazo v. INS, 794 F.2d 491, 500 (9th Cir. 1986).

[3] To show a due process violation, an alien must prove
"not merely ineffective assistance of counsel, but assistance
which is so ineffective as to have impinged upon the funda-
mental fairness of the hearing in violation of the fifth amend-
ment due process clause." See Magallanes-Damian v. INS,
783 F.2d 931, 933 (9th Cir. 1986); see also Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (alien must show error and
substantial prejudice).

In Roe v. Flores-Ortega, 120 S. Ct. 1029, 1088 (2000), the
Supreme Court held that where a defendant can show that
there is a reasonable probability that he would have appealed
but for counsel's deficient failure to consult with him about
an appeal, prejudice is presumed. Although Flores-Ortega
concerns a defendant's Sixth Amendment right to counsel, it
sheds light on our inquiry under the Fifth Amendment right
to due process.

[4] Like the habeas petitioner in Flores-Ortega, where an
alien is prevented from filing an appeal in an immigration
proceeding due to counsel's error, the error deprives the alien
of the appellate proceeding entirely. And, as the Court stated
in Flores-Ortega, this error "mandates a presumption of prej-
udice because `the adversary process itself' has been rendered
`presumptively unreliable.' " Id. at 1038 (quoting United
States v. Cronic, 466 U.S. 648, 659 (1984) (addressing denial
of counsel during a critical stage of a judicial proceedings)).
The Flores-Ortega Court continued that it could not "accord
any presumption of reliability to judicial proceedings that
never took place." Id. We agree and conclude that the holding


of Flores-Ortega applies with equal force to claims of inef-
fective assistance of counsel arising out of the Fifth Amend-
ment right to due process.

[5] Applying the Flores-Ortega test to this case, we note
that the Friends have shown that Volkova would have timely
appealed but for her counsel's error: they showed that the
appeal was actually filed, and that due to counsel's error, it
was filed one day late. We conclude that prejudice should be
presumed and, therefore, that Volkova's counsel provided
ineffective assistance.

The government argues that due process in the immigration
context does not require an appeal to the Ninth Circuit. As
such, the government continues, it cannot be a denial of due
process for counsel to have prevented that appeal. The gov-
ernment relies on Duldulao v. INS, 90 F.3d 396 (9th Cir.
1996) for this proposition. In Duldulao, we rejected a peti-
tioner's assertion that AEDPA S 440(a), which revokes our
jurisdiction over final orders of deportation under certain cir-
cumstances, is unconstitutional. See id. at 400. In so holding,
we stated that "[s]ince aliens have no constitutional right to
judicial review of deportation orders, section 440(a) does not
offend due process." Id.

The due process violation complained of here is ineffective
assistance of counsel, not the availability of an appeal to the
Ninth Circuit. Volkova was entitled to have the Ninth Circuit
review her petition.5 Had her counsel not untimely filed the
appeal, it would have been reviewed by our court. Courts do
5 This case falls within IIRIRA's "transitional rules," which apply to
deportation proceedings that were commenced before April 1, 1997 and
resulted in final deportation orders issued after October 30, 1996. See
Kalaw v. INS, 133 F.3d 114, 1150 (9th Cir. 1997). The transitional rules
provide that, with certain exceptions not relevant here, the court of appeals
has jurisdiction over a petition for review of a BIA decision under old sec-
tion 106(a) of the INA. See IIRIRA SS 306, 309(c)(1) and (4), as amended
by Pub. L. No. 104-302.


not require that every instance of ineffective assistance of
counsel be directed at an error of constitutional dimension. In
Castillo-Perez v. INS, for example, we held that counsel pro-
vided ineffective assistance where he failed to timely file an
application asylum and withholding of deportation. 212 F.3d
518, 520 (9th Cir. 2000). In that case, the petitioner admitted
the charges in the Order to Show Cause and conceded he was
deportable. See id. at 521. The IJ granted him an opportunity
to file the application for asylum and withholding of deporta-
tion. The IJ warned counsel, however, that if the application
was not submitted before an established deadline, the order of
deportation would be entered. Counsel failed to timely file the
application, and we found ineffective assistance. In Castillo-
Perez, the petitioner had no constitutional right to file the
application, yet deprivation of that right was considered inef-
fective assistance of counsel. Similarly, while the deprivation
of direct review of a deportation proceeding in the Ninth Cir-
cuit may not violate the Constitution, there may still be a con-
stitutional violation if there was ineffective assistance of

The government next argues that Volkova did not show
prejudice because she did not show that her counsel's perfor-
mance before the IJ and the BIA was ineffective. The error
Volkova's Friends point to is the failure of counsel to file a
timely appeal with the Ninth Circuit. Certainly the Friends
must show that Volkova was prejudiced, but, as the district
court noted, the petitioner only need show "plausible grounds
for relief," Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.
1996), and the Friends have certainly done that.

The government also argues that there must be "official
misleading" as to the time limits for a court to have jurisdic-
tion over an untimely appeal. The problem with this argument
is that the question here is not whether we have jurisdiction
over an untimely appeal, but rather whether Volkova's coun-
sel provided ineffective assistance when he untimely filed the
appeal to the Ninth Circuit.

We AFFIRM the district court's order granting the writ of
habeas corpus.