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Click here for the full text of this decision FACTS:Gutierrez, a native and citizen of Mexico, has lived in the United States since his admission as a lawful permanent resident in 1997. Later that year, Gutierrez was convicted of aiding and abetting the entry of illegal aliens into the United States in violation of 8 U.S.C. �1325. Although Gutierrez’s offense made him removable under the Immigration and Nationality Act, removal proceedings were not initiated against him until 2001, when Gutierrez briefly traveled to Mexico from the United States. On his return, Gutierrez was arrested and placed in removal proceedings. Before the immigration judge, Gutierrez did not challenge his removability. Instead, he sought to apply for a discretionary waiver of removal under �240A of the INA, which authorizes the Attorney General to cancel a permanent resident alien’s removal when, inter alia, the alien’s deportation would cause family hardship. The IJ ordered Gutierrez to file his application for �240A relief by June 24, 2002. Gutierrez failed to do so and, as a result, the IJ held that Gutierrez had abandoned his application and ordered him removed from the United States. The next day, Gutierrez’s lawyer filed a motion with the IJ to reopen Gutierrez’s removal proceedings. In support of this motion, Gutierrez argued that his lawyer’s health problems prevented counsel from filing the �240A relief application on time. Unconvinced, the IJ denied the motion. The IJ reasoned in part that, to the extent that Gutierrez was alleging ineffective assistance of counsel, he had not satisfied the BIA’s procedural requirements for bringing an ineffective assistance of counsel claim. In July 2003, the BIA affirmed the IJ’s denial of Gutierrez’s motion to reopen and dismissed Gutierrez’s appeal. HOLDING:Gutierrez’s petition for review is dismissed and outstanding motions are denied. When Gutierrez filed his first petition for review, the factual basis for his ineffective assistance of counsel claim existed. Gutierrez, however, could not have reasonably presented that claim because he was still represented by the very same counsel whom he now claims was ineffective. It would be unreasonable to require an alien to comply with Matter of Lozada, 19 Immigration & Nationality Dec. 637 (BIA 1988), the necessary prerequisite to an ineffective assistance of counsel claim before the BIA, while still under that counsel’s representation. Gutierrez could not have presented his claim of ineffective assistance of counsel in his second petition for review because it was not timely filed. The court therefore did not have jurisdiction to reach the merits of his claim. Accordingly, the plain terms of 8 U.S.C. �1252(d)(2) permit consideration of the instant petition and the claim of ineffective assistance of counsel it advances. As Gutierrez presents a constitutional claim of ineffective assistance of counsel, the court decides it has jurisdiction to review it on the merits. The court notes that this court has never squarely held that an alien has a constitutional right to effective counsel in removal proceedings. Several times in dicta, however, the court has stated 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. The court assumes, for the sake of argument, that such a right exists. Even assuming that aliens have a constitutional entitlement to effective assistance of counsel in some circumstances, those circumstances are not presented here. Here, Gutierrez seeks a waiver of removal from the Attorney General on the basis of family hardship � ultimate relief that is purely discretionary. Accordingly, Gutierrez has no right to effective assistance of counsel in pursuing that waiver. An alien has no due process right to a hearing to determine his eligibility for relief that is purely discretionary. “By parity of reasoning, such an alien also has no right to effective assistance of counsel in seeking to obtain such a hearing. Thus, Gutierrez’s argument fails.” OPINION:Wiener, J.; Smith, Wiener and Stewart, J.J.

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