Nee Hao Wong v. Immigration and Naturalization Service, 74-2596

• Decision Date: 21 March 1977
• Docket Number: No. 74-2596,74-2596
• Citation: 550 F.2d 521
• Parties: Howard NEE HAO WONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 521

550 F.2d 521

Howard NEE HAO WONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-2596.

United States Court of Appeals Ninth Circuit.

March 21, 1977.

Joe M. Chan, Hardesty & Lau, San Francisco, Cal., argued, for petitioner.

Mary Jo Grotenrath, Atty., Govt. Reg. & Labor Section, Crim. Div., Washington, D. C., argued, for respondent.

On Petition to Review a Decision of The United States Immigration & Naturalization Service.

Before MERRILL, WRIGHT and CHOY, Circuit Judges.

MERRILL, Circuit Judge:

Petitioner, an alien, seeks review of a final order of the Board of Immigration Appeals dismissing petitioner's appeal from a decision of an immigration judge, finding him deportable. The major question presented is whether due process requires that deportation proceedings must be postponed until the alien is competent to participate intelligently in the proceedings. We conclude that it does not; that the proceedings conducted in this case were consistent with due process. We therefore affirm the decision of the Board of Immigration Appeals.

Petitioner is an unmarried male citizen of China, last a resident of Hong Kong, aged 36 at the time of his hearing in 1974. He gained entry to this country in 1958 at Tacoma, Washington, as a nonimmigrant student and has continuously remained in the United States since that date.

During petitioner's stay in the United States he has been hospitalized for mental disturbance on numerous occasions in both California and Minnesota. Petitioner, presently dependent upon public assistance, resides in a community care center in San Francisco. Petitioner's state appointed conservator testified, and petitioner's counsel does not dispute, that petitioner's emotional condition is such that he is likely to require lifelong dependency upon publicly provided care for his needs. Petitioner's mother, sister and brother reside in the United States but have not maintained contact with petitioner. Apparently, they are unable or unwilling to offer him any assistance.

The Immigration and Naturalization Service sought deportation on the ground that petitioner, as a nonimmigrant alien, had overstayed his permission to remain in this country. Immigration and Nationality Act § 241(a)(2), 8 U.S.C. § 1251(a)(2) (1970). A deportation hearing was conducted on January 8, 1974, before an immigration judge as is required under § 242(b) of the Act, 8 U.S.C. § 1252(b) (1970). Petitioner was present, represented by counsel, and accompanied by his conservator who testified on petitioner's behalf. Petitioner's counsel admitted deportability for remaining longer than permitted, as charged.

Having conceded deportability, petitioner, on the ground that his mental condition and need for care would constitute deportation "an extreme hardship" to him, applied for suspension of deportation under the Immigration and Nationality Act § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1970). ¹ The immigration judge found that petitioner "has the necessary residence in this country to qualify for that privilege," and that deportation would constitute an extreme hardship to him. His good moral character was not disputed. Thus, the prerequisites to an exercise of discretion to suspend deportation existed. The immigration judge concluded, however, that petitioner's case was not a situation in which suspension should be granted.

The Board of Immigration Appeals found the immigration judge's denial of suspension to have been a reasonable exercise of discretion in view of the circumstances. This petition followed.

Petitioner contends that the deportation hearing was lacking in due process, since he was not competent to participate intelligently in the proceedings against him. Counsel for petitioner moved to have the hearing continued until such time as he was competent. He asserts on appeal that denial of the motion was a denial of due process.

Aliens subject to deportation proceedings are, indeed, protected by the constitutional right to procedural due process. The Japanese Immigrant Case, 189 U.S. 86, 100-101, 23 S.Ct. 611, 47 L.Ed. 721 (1903). Deportation, however, is not a criminal proceeding, and the full trappings of procedural protections that are accorded criminal defendants are not necessarily constitutionally required for deportation proceedings. United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975).

The Immigration and Naturalization Act contemplates that deportation proceedings may be had against mental incompetents. Indeed, under certain circumstances (not present here) mental problems constitute a ground for exclusion, 8 U.S.C. § 1182(a)(2), (3), and (4) (1970), and for deportation, 8 U.S.C. § 1251(a)(3) (1970). Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1970), provides that an alien who is mentally incompetent shall have his rights and privileges protected through prescribed "necessary and proper safeguards." Pursuant to this congressional directive, 8 C.F.R. § 242.11 (1976) provides:

"When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the guardian, near relative, or friend who was served a copy of the order to show cause shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent."

Throughout the hearing before the immigration judge petitioner...