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Lima v. Holder

United States Court of Appeals, First Circuit

July 8, 2014


As Amended July 9, 2014.

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[Copyrighted Material Omitted]

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Jeffrey B. Rubin on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, and Theodore C. Hirt, Senior Litigation Counsel, Office of Immigration Litigation on brief for respondent.

Before Lynch, Chief Judge, Thompson, Circuit Judge, Smith, District Judge.[*]



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THOMPSON, Circuit Judge.

"As we must account for every idle word, so must we account for every idle silence." Benjamin Franklin's words ring true for Petitioner Dione Pereira Lima, who struggles mightily to take back his words in the proceedings below, while simultaneously attempting to assert new claims of error. In this challenge to a final removal order requiring him to return to Brazil, Lima attempts to undo his attorneys' concessions of removability. He further seeks to argue--for the first time--that the Immigration Judge violated his due process rights by denying his motion to continue the proceedings below and by failing to permit him to amend his written pleadings. We deny the petition for review.


Lima is a native and citizen of Brazil who entered the United States on or about December 16, 2004. He adjusted status to that of lawful permanent resident on January 27, 2009. Later that year, Lima was arrested and charged with breaking and entering in the daytime in violation of Mass. Gen. Laws ch. 266 § 18.[1] Brought before the Malden District Court on December 15, 2009, Lima admitted facts sufficient for a finding of guilt. The court ordered the case to be continued without a finding for two years, and directed Lima to pay restitution of approximately $6,220.00.

Lima was arrested a second time in December 2010, this time on suspicion of breaking into cars, and charged with another violation of Mass. Gen. Laws ch. 266 § 18. On January 4, 2011, he appeared again in the Malden District Court and admitted to facts sufficient for a finding of guilt. This time, he received two years of probation.[2]

Lima's convictions quickly resulted in consequences beyond probation. On February 11, 2011, the Department of Homeland Security (" DHS" ) served him with a Notice to Appear (" NTA" ) charging him as removable under the Immigration and Nationality Act (" INA" ) § 237(a)(2)(A)(ii) for being convicted, at any time after admission into the United States, of two crimes involving moral turpitude. A series of hearings and appeals regarding Lima's removability ensued. Because of their relevance to our decision today, we provide the following summary of events.

After an initial hearing at which an Immigration Judge (" IJ" ) gave Lima additional time to secure legal representation, counsel appeared on March 3, 2011. During the course of proceedings that day, counsel told the IJ that Lima " has [been

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convicted of] two crimes of moral turpitude, which he has a breaking and entering of a house and breaking and entering of a vehicle." Lima's attorney went on to submit written pleadings conceding the NTA's allegations and admitting that Lima was removable as charged. Counsel explained that Lima intended to apply for asylum and withholding of removal. The IJ raised some concern as to whether Lima would be eligible for asylum and asked whether he was " trying to do anything with the convictions," to which counsel responded in the affirmative. He further stated that he would " have [Lima] come back in to submit the applications" for asylum and/or withholding of removal, and adjourned the proceedings until April 21, 2011.

Upon his return, and in spite of his past representations, defense counsel reported now that Lima would not be applying for asylum or withholding of removal after all. The IJ scheduled the next hearing, at which Lima was to appear in person, for May 5. Sometime thereafter, Lima discharged his original attorney and hired new counsel.[3]

Lima, with his new attorney beside him, appeared before the IJ on May 5. Addressing Lima's change in representation, counsel explained that Lima " did not agree with the course of action that his previous counsel wanted to take on the case and he seeked [sic] our office to represent him from this point forward." She never denied or disavowed Lima's first attorney's admission that his 2009 conviction was for breaking into a " house." She did, however, request a continuance so that Lima could move to vacate both convictions in the Malden District Court. Counsel stated that Lima had not been advised of the immigration consequences of pleading to the criminal charges and would, therefore, seek to overturn them pursuant to the Supreme Court's ruling in Padilla v. Kentucky.[4]

The IJ first noted that Lima had previously indicated he would accept a removal order. He denied Lima's motion to continue, observing that he did not know how long it would take the Massachusetts courts to dispose of Lima's Padilla motions. The IJ proceeded to find Lima removable by clear and convincing evidence based on Lima's " admissions, as well as his concession of removability." The IJ then ordered Lima removed to Brazil.

Lima appealed to the Board of Immigration Appeals (" BIA" ), taking the position that the IJ erred in not granting him a continuance to collaterally attack his state court convictions. Notably, Lima's brief to the BIA contains the explicit statement that Lima " is removable for two convictions for which [Lima] is actively pursuing post-conviction relief." This was the sole ground Lima advanced in favor of reversal. The BIA upheld the removal order on August 22, 2011.

That same day, the Malden District Court granted Lima's new trial motion with respect to his 2011 conviction (the one for breaking into cars, according to his first attorney) on the grounds of ineffective assistance of ...

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