Henriques v. IMMIGRATION & NATURALIZATION SERV., BD. OF IMM. APP., No. 794

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: FEINBERG, MULLIGAN and OAKES, Circuit
• Parties: Jose HENRIQUES, Petitioner, v. The IMMIGRATION & NATURALIZATION SERVICE, BOARD OF IMMIGRATION APPEALS, Respondent.
• Decision Date: 27 July 1972
• Docket Number: No. 794,Docket 72-1048.

465 F.2d 119 (1972)

Jose HENRIQUES, Petitioner,
v.
The IMMIGRATION & NATURALIZATION SERVICE, BOARD OF IMMIGRATION APPEALS, Respondent.

No. 794, Docket 72-1048.

United States Court of Appeals, Second Circuit.

Argued July 13, 1972.

Decided July 27, 1972.

Jose Henriques, pro se.

Stanley H. Wallenstein, Special Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Joseph P. Marro, Special Asst. U. S. Atty., of counsel), for respondent.

Burt Neuborne, New York City (Stephen Weinberg, New York City, on the brief), for the New York Civil Liberties Union, amicus curiae.

Before FEINBERG, MULLIGAN and OAKES, Circuit Judges.

465 F.2d 120

PER CURIAM:

Petitioner, with assistance from the New York Civil Liberties Union which briefed and argued the appeal, seeks to raise a momentous issue—the right of an indigent alien to counsel in a deportation proceeding. He does this by way of a petition for review, under section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a, of a December 13, 1971, order of the Board of Immigration Appeals, which dismissed an appeal from a decision of a Special Inquiry Officer. That decision found petitioner deportable as a nonimmigrant visitor for pleasure who overstayed his four-day visa. However, the posture of the case is such that we do not reach the issue petitioner seeks to raise.

Considerable doubt exists whether petitioner is an indigent. Concededly, he was making about $95 a week gross, and $82 a week take-home, pay at the time of his hearing, which, incidentally, was adjourned four times to enable him to retain counsel. The $82 per week net earnings prevented him from meeting the Legal Aid Society requirements for providing free legal services; although the only Society lawyer apparently responsible for immigration matters did accompany petitioner to one scheduled hearing, he apparently did not enter an appearance on petitioner's behalf. Petitioner insists that the immigration bar has a $500 minimum fee for handling this kind of case at the Board of Immigration Appeals level, and that he did not have the necessary wherewithal to retain private counsel. He therefore complains that, since the statutes, sections 242(b) and 292 of the Act, 8 U.S.C. §§ 1252(b) and 1362 (see 8 C.F.R. § 242.16), permit counsel at no expense to the government but do not require counsel for indigents in deportation proceedings, they deny indigent aliens procedural due process or equal protection of the laws.¹

But even if we were to treat petitioner as an indigent for all practical purposes, which on this scanty record it would be difficult for us to do, the sole issue before the Special Inquiry Officer was whether petitioner had overstayed his four-day visa. It is undisputed that he did do so, and hence he is deportable under section 241(a) (2), 8 U.S.C. § 1251(a) (2). Kassab v. INS, 322 F.2d 824, 826-827 (9th Cir. 1963), cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608 (1964); cf. Londono v. INS, 433 F.2d 635 (2d Cir. 1970).² Thus counsel, even if furnished, could not have obtained any other result in the administrative proceedings. No justification

465 F.2d 121

or excuse for the overstay is offered or even suggested at this stage. No prejudice can be said to have resulted from the absence of counsel. This being true, the hearing below was not invalid. De Bernardo v. Rogers, 102...