U.S. District Court for the NMI designated Judge Frances M. Tydingco-Gatewood has dismissed with prejudice a lawsuit that challenges a final order by an immigration judge of removal from the CNMI filed by a Filipino mother of two minor U.S. children, including one who has a medical condition.
Dismissal with prejudice means Amalia Abo Guanlao can no longer re-file her petition for a writ of habeas corpus, through which she seeks to appeal the immigration judge’s removal order.
Guanlao, who herself has a medical condition, has been residing on Saipan for over 24 years now.
In an order issued Tuesday that granted U.S. Homeland Security officials’ motion to dismiss, Tydingco-Gatewood said since Guanlao failed to exhaust administrative remedies of her claims, she would generally be required to return to the Board of Immigration Appeals (BIA) to pursue them.
However, Tydingco-Gatewood said, the 30-day window for filing a motion to reopen the case has lapsed, and the District Court lacks jurisdiction to order the window reopened.
Thus, the judge said, Guanlao cannot prevail on her due process claim in the District Court, before the BIA, or before the U.S. Court of Appeals for the Ninth Circuit.
“While this outcome may seem harsh, especially given the alleged deficiencies of multiple attorneys involved in this case, the court is not empowered to do more than authorized by the constitution and by statute,” said Tydingco-Gatewood, adding that she cannot grant Guanlao the relief that she seeks.
She directed the clerk of court to close Guanlao’s case.
Aside from naming then-U.S. Department of Homeland secretary Jeh Johnson as respondent, Guanlao also sued several U.S. immigration officials.
Rosemond Santos appeared as counsel for Guanlao. Before having Santos as her lawyer, for many months she had sought for a lawyer after her previous counsel was disbarred.
In her petition, Guanlao alleges that her attorney, Alice Rae, was ineffective because she failed to advise her that she could appeal the final order of removal to the Ninth Circuit.
Thus, Guanlao argued, she was denied due process and is entitled to an order reopening the 30-day period for filing an appeal of the final order of removal and for filing an appeal of the BIA’s rejection of the defective motions to reopen filed by Rae and another lawyer that she did not identify.
DHS officials, through the U.S. Attorney’s Office, argued that Guanlao has reasserted the previously dismissed claims, and these must be dismissed.
DHS officials also contended that Guanlao has not established that Rae’s performance was deficient, or, even if it were deficient, that she was prejudiced by Rae’s performance.
In granting DHS officials’ motion to dismiss, Tydingco-Gatewood said the District Court in its decision issued on Oct. 31, 2016, the court has jurisdiction to hear only a “narrow claim of ineffective assistance of counsel in connection with a post-administrative filing of an appeal with the court of appeals.”
Tydingco-Gatewood said consistent with the Oct. 31 decision, the District Court cannot reopen the window to petition for review with the court of appeals with respect to the rejection of the defective motion to reopen and the untimely motion to reopen.
The court, she said, therefore, lacks the authority to reopen the window to petition the Ninth Circuit to consider the June 22, 2015 rejection of the defective motion to reopen filed by Rae and the March 2, 2016 denied of the untimely motion.
With respect to Guanlao’s due process violation claim, Tydingco-Gatewood said because Guanlao has alleged that Rae failed to inform her about appealing the final removal order and that she would have appealed it if she had been told of the option, she is entitled to the presumption of prejudice.
However, the judge pointed out, Guanlao did not raise the due process claim with the BIA and has thus failed to exhaust the administrative remedies as required.
In her declaration filed in court, Guanlao disclosed that since 2013 she has been suffering with pain in her left breast and back.
She underwent operation in the Philippines in 2008, but since then had never any follow-up check-up.
Guanlao said her husband has been working on Saipan since 1989.
Guanlao said their two minor children were born on Saipan.
“They are the reason why I want to live longer and to be with them to the rest of my life,” she said.
U.S District Court for the NMI Chief Judge Ramona V. Manglona has stayed pending further court’s order the removal of Guanlao while the court hears her petition on the merits.