Farrokhi v. U.S. I.N.S.
| Decision Date | 05 April 1990 |
| Docket Number | No. 89-2938,89-2938 |
| Citation | 900 F.2d 697 |
| Parties | Anvar FARROKHI, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Mary Witt, George Washington University Nat. Law Center Community Legal Clinic, Washington, D.C., for petitioner.
Jill E. Zengler, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for respondent. Paul Grussendorf, George Washington University Nat. Law Center Community Legal Clinic, on brief, Washington, D.C., for petitioner.
Stuart E. Schiffer, Acting Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, Charles E. Pazar, Office of Immigration Litigation, U.S. Dept. of Justice, on brief, Washington, D.C., for respondent.
Before HALL, MURNAGHAN, and CHAPMAN, Circuit Judges.
Anvar Farrokhi appeals the affirmance by the Board of Immigration Appeals of an Immigration Judge's determination that Farrokhi is subject to deportation and has abandoned his application for asylum.
Farrokhi is a thirty-one year old native of Iran. He entered the United States in 1978 on a non-immigrant visa for the purpose of furthering his medical studies at the University of Nebraska. He has not attended that university or any other school since 1979.
Farrokhi has been convicted of three crimes committed in the United States. In 1985, he was convicted of stealing merchandise valued at $1.12 from a grocery store. He was fined $100 and placed on one year's probation. In January 1987 Farrokhi was convicted of passing bad checks valued at less than $300. He was sentenced to six months probation. In December 1987 he was convicted of battery on a police officer and resisting arrest. According to Farrokhi's application for asylum, he was sentenced to time served, which amounted to 271 days.
After we heard oral argument, the District Court of Maryland for Howard County "struck" Farrokhi's 1985 theft conviction on the grounds that "the Sixth Amendment requirements of the United States constitution as to notice of advice of rights to counsel ... [were] not complied with by the presiding judge." Maryland v. Farrokhi, No. 603246TO (Dist.Ct.Md. Jan. 19, 1990) (order striking conviction). The court ordered that "the matter shall be set back on the docket for a trial wherein [Farrokhi] may be represented by counsel." Id.
After issuance of an Order to Show Cause why deportation should not be ordered, Farrokhi appeared before Immigration Judge Bruce M. Barrett on July 8, 1988. At the beginning of the hearing, Judge Barrett asked Farrokhi if he spoke and understood English, to which Farrokhi responded "yes." Judge Barrett also noted that, from his prior observation of Farrokhi, it appeared to him that Farrokhi understood English.
Judge Barrett asked Farrokhi if the government had provided him with a list of local counsel who could represent him for little or no fee, to which Farrokhi responded "yes." Judge Barrett asked also whether the government had given Farrokhi Form I-618, which explains his appeal rights, to which Farrokhi responded "yes." The judge also asked Farrokhi if he understood the charges against him, to which Farrokhi responded "yes." Judge Barrett then explained to Farrokhi that he had the right to an attorney, although not at cost to the government. After that, the following ensued:
If you can't afford Counsel, you can refer to the legal aid list, or you may speak for yourself. What do you wish to do?
Farrokhi: At this point, I would like to speak for me[,] for myself.
Based on Farrokhi's admissions to the government's allegations, Judge Barrett found Farrokhi to be deportable on two grounds. First, by not attending school since 1979, Farrokhi had violated his non-immigrant status and was therefore deportable under 8 U.S.C. Sec. 1251(a)(9); 1 second, having been convicted of two crimes of moral turpitude, Farrokhi was deportable under 8 U.S.C. Sec. 1251(a)(4). 2 The two crimes of moral turpitude relied upon by Judge Barrett were the convictions for stealing the merchandise and for passing bad checks. As noted above, the first of these two convictions has been "stricken," although Farrokhi remains subject to retrial.
Judge Barrett then pursued the issue of asylum:
I have found that you are subject to deportation. That does not mean that you would have to be deported. Do you have a fear of being persecuted if you go back to Iran? All you have to do is indicate slightly, sir.
Farrokhi: Yes, I do.
Judge Barrett then asked if Farrokhi wanted to file an application for asylum, provided Farrokhi with an application form, informed Farrokhi that the application should be returned to him (Judge Barrett), informed Farrokhi of what the most important information in his responses would be, and informed Farrokhi of the ten-day deadline to submit the application. Judge Barrett's explanations were oral.
On August 1, 1988, thirteen days after the July 18, 1988, deadline for the submission of Farrokhi's application for asylum, Judge Barrett found that Farrokhi's application had been abandoned. In February 1989, over six months later, Farrokhi filed a late application for asylum.
During the proceedings before Judge Barrett, Farrokhi referred to his potential eligibility for legalization through the government's amnesty program. Judge Barrett explained to Farrokhi that he did not have jurisdiction to hear Farrokhi's claim.
Farrokhi appealed Judge Barrett's decision to the Board of Immigration Appeals ("BIA"). The only issue Farrokhi raised in his notice of appeal to the BIA was his claim that he was entitled to amnesty. He raised the possible due process implications neither of his lack of counsel nor of Judge Barrett's finding that Farrokhi had abandoned his application for asylum. Although the details are not clear, it appears from the BIA's decision that Farrokhi disputed his deportability under Sec. 241(a)(4) of the Act. Farrokhi did not dispute his deportability under Sec. 241(a)(9). Indeed, in support of his argument of eligibility for amnesty, Farrokhi's notice of appeal reasserts that he violated his student visa. The BIA held that Judge Barrett properly (1) found Farrokhi deportable under Sec. 241(a)(4) and (2) refused to consider Farrokhi's eligibility for amnesty because jurisdiction for that decision did not lie.
Although the Record before us is far from clear, it appears that Farrokhi has pursued other avenues in his quest for legalization or "amnesty." In his brief, Farrokhi contends that he has "filed a timely application for amnesty." However, Farrokhi has neither indicated to whom he filed the timely application nor included a copy of the timely application in the record. Further doubt is cast on his claim that he has filed a timely application by the fact that he has submitted a "Statement of Reasons for Not Applying for Legalization Prior to May 5, 1988 and Statement of Eligibility for Legalization" to plaintiffs' counsel in Ayuda, Inc. v. Thornburgh, No. 88-0625 (D.D.C.). 3 Although that document also is absent from the record, its title, combined with the absence from the record of a timely application, indicates that, contrary to the contention in his brief, Farrokhi has not filed a timely application for legalization. Nevertheless, Farrokhi's submission to plaintiffs' counsel in the Ayuda litigation indicates his ongoing attempt to obtain legalization. 4
Farrokhi now appeals the BIA decision to us, presenting for our consideration the following four claims:
1. His lack of counsel at his deportation hearing constituted a deprivation of due process;
2. Judge Barrett's use of Farrokhi's conviction for passing bad checks as a basis for deportability under Sec. 241(a)(4) was improper;
3. Judge Barrett's finding that Farrokhi abandoned his application for asylum constituted a deprivation of due process; and
4. Farrokhi should not be deported until his eligibility for amnesty is ruled upon.
We first address the issue of whether Farrokhi has waived his right to make those claims and then reject each claim in turn.
Title 8 U.S.C. Sec. 1105a(c) provides that:
An order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right....
As a general rule, an alien who has failed to raise claims during an appeal to the BIA has waived his right to raise those claims before a federal court on appeal of the BIA's decision. Vargas v. U.S. Dept. of Immigration, 831 F.2d 906, 907-08 (9th Cir.1987); Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981); Der-Rong Chour v. INS, 578 F.2d 464, 468 (2d Cir.1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1786, 60 L.Ed.2d 239 (1979).
However, the Ninth Circuit has developed an exception for due process claims, holding that aliens may raise such claims in the federal courts even if they have failed to raise them before the BIA provided that the due process claim is not merely an allegation of "procedural error" cloaked in due process language. See Vargas, supra, 831 F.2d at 908. The Ninth Circuit exception to the general waiver rule, based on the premise that "the BIA does not have jurisdiction to adjudicate constitutional issues," id., ultimately derives from Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). See Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.1980) ( Johnson ). However, we read Johnson to stand only for the proposition that "adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies." Johnson, 415 U.S. at 368, 94 S.Ct. at 1166 (citations omitted) (emphasis added). We do not know how much reach the Ninth Circuit intends to give its "procedural error" exception to its excusing of failure to raise due process claims before the BIA. ...
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