206 F.3d 253 (2nd Cir. 2000), 98-4368, Michel v I.N.S.

Docket Nº:Docket No. 98-4368
Citation:206 F.3d 253
Case Date:February 04, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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206 F.3d 253 (2nd Cir. 2000)




Docket No. 98-4368

United States Court of Appeals, Second Circuit

February 4, 2000

Argued: August 10, 1999

Petitioner seeks review of an order of the Board of Immigration Appeals affirming his deportation. He argues that he was denied representation at his removal hearing, that the hearing was not fair, that his crimes arose out of a single scheme of criminal misconduct, and that even if they were separate crimes, they did not involve moral turpitude. He therefore claims deportation is improper under 8 U.S.C. § 1227(a)(2)(A)(ii).


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MITCHELL D. KESSLER, New York, N.Y., for Petitioner.

DIOGENES P. KEKATOS, Assistant United States Attorney for the Southern District of New York, for Mary Jo White, United States Attorney for the Southern District of New York (Steven M. Haber, Assistant United States Attorney for the Southern District of New York, on the brief), for Respondent.

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Before: CALABRESI, CABRANES, and SOTOMAYOR, Circuit Judges.

Judge Cabranes files a separate opinion with respect to the "single scheme of criminal misconduct" issue, and concurs in the judgment of the Court. Judge Calabresi dissents from the majority's holding with respect to whether Michel's crimes involve 'moral turpitude' and files a separate opinion to that effect.

CALABRESI, Circuit Judge, delivering the unanimous opinion of the Court with respect to Parts I and II, and the majority opinion with respect to Part III, in which SOTOMAYOR, Circuit Judge, joins:

Jean Patrick Michel, 37, a native of Haiti and a permanent resident of the United States for the past eighteen years, petitions this Court for review of the decision of the Board of Immigration Appeals ("BIA") affirming that he was eligible for removal under 8 U.S.C. § 1227(a)(2)(A)(ii) (Supp. III 1997) as an alien who was "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." Michel seeks review on a number of grounds, claiming lack of representation, absence of a fair removal hearing, and that the BIA erred in holding that his crimes did not arise out of a single scheme of criminal misconduct. We deal with all three of these issues in this opinion and affirm the BIA's decision with respect to all of them.1 Michel also claims that his crimes do not "involv[e] moral turpitude." The Court will address that issue, and affirm the BIA's conclusion that Michel's crimes involved "moral turpitude," in Part IV of a majority opinion by Judge Sotomayor, in which Judge Cabranes joins.

I. Background

Michel entered the United States in September 1971 as a lawful permanent resident. In November 1997, however, the Immigration and Naturalization Service ("INS") began proceedings to deport him since he had been convicted twice of criminal possession of stolen property in the fifth degree. On each occasion, Michel pled guilty to possession of stolen bus transfers.

At the removal hearing on November 20, 1997, Michel appeared without counsel. He had hoped that Father Robert Vitaglione (called Father Bob), who had been his representative in a previous immigration case, would represent him.2 See Certified Administrative Record in A30 675 667 ("R.") at 53. Father Bob, however, could not attend the hearing because one of his church members had been involved in an accident. As a result, before any evidence was taken in the hearing, the Immigration Judge ("IJ") explained to Michel that he had a right to representation. See id. at 57-58. The IJ then asked the petitioner whether he wanted counsel during the hearing or whether he would proceed without representation. Michel responded that he would "speak for [him]self." Id. at 58.

After this exchange, the IJ began to question the petitioner about the allegations in the notice, which stated that Michel was deportable under § 1227(a)(2)(A)(ii), since (1) he had twice been convicted of criminal possession of stolen property in the fifth degree, and (2) those two crimes did not arise out of a single scheme of criminal misconduct. See id. at 151. He also asked Michel about his immigration history. The IJ then adjourned the hearing in order to get Michel's complete immigration file from the INS, including the file from Michel's previous

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deportation proceedings. Because there was a question as to whether Michel's father - with whom Michel has not been in contact for over twenty-three years - had become a citizen when Michel was a minor, thus making Michel a citizen, the IJ asked the INS to find Michel's father's file as well. In addition, before adjourning the hearing to allow the INS time to find the missing information, the IJ again reminded the petitioner that he could contact an attorney or representative to aid him when the hearing reconvened. See id. at 75-76.

The hearing resumed on November 26, 1997, but the INS had not located any of the files relating to Michel or his father. The IJ once again adjourned the hearing, requesting that the INS redo its search because he did not want to proceed without complete information.

When the hearing reconvened on December 3, 1997, the INS presented evidence that Michel's father had become a citizen in July 1996. Since Michel was, by then, over the age of eighteen, he could not derive citizenship from his father. See id. at 91-92. The IJ then told Michel that his two convictions made him removable under the statute and asked where he would like to be sent. Michel did not offer a preference, other than to remain in the United States, at which point counsel for the INS designated Haiti. The IJ tried to determine if there were any grounds upon which Michel could request asylum, thereafter advising Michel that, although he would provide Michel with an application for asylum and a one-week period to pursue that claim, such a claim did not appear to be viable. The IJ also noted that Michel was not eligible for a waiver of deportation as he had received one in 1993. See 8 U.S.C. § 1229b(c)(6) (providing that an alien who has previously received relief in a deportation proceeding is ineligible for a second cancellation of removal). When the IJ asked Michel if he had anything additional to say, Michel asked to see Father Bob. See R. at 100. The IJ denied this request because he did not think it would serve any purpose. See id. The IJ then rendered his decision on the record, ordering Michel deported. Michel indicated that he would appeal.

Michel retained counsel for his appeal to the BIA. On October 27, 1998, the BIA, with one member concurring in part and dissenting in part, affirmed the order of deportation. See R. at 2-4. The BIA rejected Michel's claim that his right to counsel had been violated, as well as his claim that he did not receive a full and fair removal hearing. See id. In addition, the BIA found no merit to Michel's argument that the triviality of his crimes should be considered when deciding whether they involved "moral turpitude," because the "seriousness of a criminal offense . . is [not] determinative of whether a crime involves moral turpitude." Id. at 4. Finally, the BIA found that the two crimes did not arise from a single scheme of criminal misconduct. See id.

Michel filed a timely petition for review in this Court. See 8 U.S.C. § 1252(a)(1). Before us, Michel raises the same issues he raised before the BIA: (1) that he was deprived of his right to representation; (2) that he did not receive the process he was due in his deportation hearing; (3) that his crimes arose out of a single scheme of criminal misconduct; and (4) that his crimes were not ones that involved moral turpitude. The INS argues that the BIA correctly ruled against Michel on all counts.3 We here consider the first three of Michel's four arguments. The Court will address the merits of Michel's fourth contention in Part IV of a majority opinion by Judge Sotomayor, in which Judge Cabranes joins.

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II. Michel's Right to Representation and Due Process Claims

Under the Due Process Clause and the Immigration and Nationality Act, an alien is entitled to representation of his own choice at his own expense. See Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991); see also 8 U.S.C. § 1362 (providing that in removal proceedings, the person concerned has the privilege of being represented, though at no expense to the Government). To that end, 8 U.S.C. § 1229a(b)(4)(A) directs the Attorney General to adopt regulations to ensure that "the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings." And the regulations adopted by the Attorney General require the IJ to "[a]dvise the respondent of his or her right to representation, at no expense to the government, by counsel of his or her own choice authorized to practice in the proceedings and require the respondent to state then and there whether he or she desires representation." 8 C.F.R. § 240.10(a)(1) (1999).

We have interpreted this rule to allow a waiver of counsel to be found only "where it was possible to make a specific finding that the alien indicated - through what he said to the immigration judge - that he wanted to proceed without counsel." Montilla, 926 F.2d at 169. For example, in Montilla, we found that the petitioner had not waived his right to counsel, because, although he was asked whether he wanted to be represented at the hearing, his answer was nonresponsive, "demonstrat[ing his] complete ignorance on this subject." Id. In Hidalgo-Disla v. INS, 52 F.3d 444 (2d Cir. 1995), however, we held that...

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