Prichard-Ciriza v. I.N.S.

• Decision Date: 03 December 1992
• Docket Number: Nos. 91-4276,91-4893,P,PRICHARD-CIRIZ,s. 91-4276
• Citation: 978 F.2d 219
• Parties: Marioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 219

978 F.2d 219

Mario PRICHARD-CIRIZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 91-4276, 91-4893

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 3, 1992.

Joseph A. Vail, Houston, Tex., for petitioner.

Richard Thornburgh, Atty. Gen., Philemina McNeill Jones, Robert Kendall, Jr., Robert L. Bombough, Alice M. King., U.S. Dept. of Justice, Washington, D.C., for respondent in No. 91-4276.

William Barr, Acting Atty. Gen., Philemina Jones, Atty., Robert Kendall, Jr., Asst. Dir., Civ. Div., Dept. of Justice, Robert L. Bombough, Dir., Off. of Immigration Lit Washington, D.C., for respondent in No. 91-4893.

John B.Z. Caplinger, DD, INS, New Orleans, La., Ronald G. Parra, DD, INS, Houston, Tex., for other interested parties.

Petitions for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, JONES and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

Mario Prichard-Ciriza (Prichard), a.k.a. Mario Trevino-Ciriza, appeals (1) the dismissal of his deportation appeal by the Board of Immigration Appeals (BIA) [No. 91-4276] and (2) the BIA's denial of his motion to reopen deportation proceedings to apply for a waiver under section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) [No. 91-4893]. We affirm both the dismissal of Prichard's appeal and the denial of his motion to reopen.

I. BACKGROUND

Prichard is a 33 year-old native and citizen of Mexico. He became a permanent resident alien on January 26, 1982. He is married to a permanent resident alien. They have no children.

On June 25, 1987, Prichard was convicted of aggravated possession of cocaine. He was sentenced to ten years in the Texas Department of Corrections. Shortly after his conviction, on February 2, 1988, the Immigration and Naturalization Service (INS) served Prichard with an Order to Show Cause why he should not be deported, based upon his recent conviction, pursuant to 8 U.S.C. § 1251(a)(11). ¹

A. PRICHARD'S DEPORTATION HEARING.

On February 22, 1988, Prichard appeared before the Immigration Judge (IJ) along with twenty other aliens facing possible deportation. An interpreter was present. Prichard was not represented by counsel.

In the presence of all 21 aliens, the IJ informed them that they had the right to be represented by an attorney of their choice and at their own expense; that he would postpone any alien's individual hearing if he or she wished to obtain or speak to an attorney or if the alien needed additional time to prepare; and that he would reset any alien's hearing for another date "for any reason whatsoever." None of the aliens, including Prichard, indicated that he or she wanted the hearing postponed. The IJ also informed the aliens of the availability of free or low-cost legal assistance in the Houston area and of their right to appeal the IJ's decision to the BIA. The IJ showed the aliens an Order to Show Cause and ensured that each had received a copy stating his or her full, true, and correct name. Finally, the IJ informed the aliens that, should they be deported, they would be ineligible to return for five years without receiving special permission from the Attorney General. He then asked if there was anyone who wanted to postpone his or her hearing "for any reason whatsoever." Receiving no positive responses, the IJ administered the oath to the aliens and proceeded with their individual cases.

Addressing Prichard individually, the IJ again asked whether Prichard had received the information about legal services, the explanation of Prichard's appeal rights, and a copy of Prichard's Order to Show Cause. Prichard answered yes to all three questions. The IJ asked Prichard whether he wanted additional time to consult with an attorney or to prepare for his hearing. Prichard replied that he wanted to represent himself.

Prichard testified that he is a native of Mexico and a citizen of that country, not of the United States. He further testified that he last entered the United States on January 26, 1982, when he was admitted as a permanent resident alien, but that he had been in the United States "for a long time before that." He admitted to his June 25, 1987, conviction for cocaine possession. Prichard further admitted that he was subject to deportation as a result of that conviction.

The IJ subsequently rendered his decision, ordering Prichard deported to Mexico. Prichard expressed his disagreement with the decision, thereby reserving his right to appeal. The IJ informed Prichard that, in order to timely perfect appeal, he would have until March 3, 1988 to file the forms provided by the IJ. The IJ also indicated that he would conduct a bond hearing for Prichard after he was through with the deportation hearings.

B. PRICHARD'S BIA APPEAL.

Prichard timely appealed the IJ's order to the BIA on the grounds that (1) he did not have advice of counsel, (2) he was not released from custody until February 25, 1988, which prevented him from obtaining counsel prior to filing his appeal, (3) his wife is a permanent resident, (4) his mother and United States citizen brother live in the United States, and (5) he has no immediate relatives in Mexico. Having subsequently obtained counsel, Prichard filed a brief in support of his appeal which claimed, additionally, that he was prejudiced by the consolidated deportation hearing in that (6) the IJ did not consider Prichard's possible claim to derivative United States citizenship based upon the citizenship of his father, (7) the IJ should have considered Prichard's eligibility for a waiver of deportation under section 212(c), and (8) the IJ's failure to inform Prichard of his right to request release from custody deprived Prichard of his right to counsel.

On February 5, 1991, the BIA denied Prichard's request that his case be remanded to the IJ and dismissed his appeal. The BIA held that Prichard had offered no evidence to the IJ which might have suggested that he had a legitimate claim to derivative United States citizenship. In fact, quite the contrary, Prichard admitted that he was a native and citizen of Mexico. Consequently, the IJ's decision to consolidate Prichard's hearing with those of the other aliens did not prejudice his ability to claim derivative citizenship. ² The BIA further held that Prichard failed to satisfy the seven-year requirement of section 212(c) as of the date of his deportation hearing, and that his statement that he had been in the United States "for a long time" was insufficient grounds for a waiver of deportability. ³ Finally, with respect to the question of Prichard's custody and his access to counsel, the BIA held that the multiple offers by the IJ to postpone the proceedings so that Prichard could obtain counsel, or "for any reason whatsoever," as well as the fact that the IJ held a bond hearing at the conclusion of the deportation proceedings, were sufficient to give Prichard access to advice of counsel, if desired. Prichard appeals the denial of his request for remand and the dismissal of his appeal. [No. 91-4276]

C. PRICHARD'S MOTION TO REOPEN.

Prichard timely moved to reopen his deportation hearing for purposes of asserting (1) his eligibility for a waiver of deportation under section 212(c) and (2) his claim of derivative citizenship. The BIA denied Prichard's motion to reopen on the grounds that his claim of eligibility under section 212(c) had existed since January 26, 1989, but that Prichard had not advanced that claim with the proper evidence prior to the Board's February 1991 decision, and that any evidence as to Prichard's derivative citizenship claim was not "new evidence which had not ... been available," 8 C.F.R. § 3.2, prior to February 1991. The BIA also found that Prichard was no longer eligible for section 212(c) relief because he was no longer a lawful permanent resident alien after the BIA's February 5th final administrative order of deportation. Prichard appeals the denial of his motion to reopen. [No. 91-4893]

II. ANALYSIS

Prichard's various arguments on appeal before this court and the BIA can be consolidated into four issues: (1) lack of assistance of counsel at his deportation hearing; (2) his claim to derivative United States citizenship; (3) his claim of eligibility for a section 212(c) waiver of deportation; and (4) the "equities" favoring granting him a waiver of deportation. Only the first and third issues are properly before this court. ⁴

A. PRICHARD'S RIGHT TO COUNSEL AT THE DEPORTATION HEARING.

A deportation proceeding is civil, not criminal, in nature, and various constitutional protections associated with criminal proceedings are not required. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984). Specifically, no sixth amendment right to counsel exists in a deportation proceeding. United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir.1987); Trench v. INS, 783 F.2d 181, 183 (10th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986).

While Prichard was entitled to due process during his deportation hearing, "due process is not equated automatically with a right to counsel." Michelson v. INS, 897 F.2d 465, 468 (10th Cir.1990); see Trench, 783 F.2d at 183. "[B]efore we may intervene based upon a lack of representation, [Prichard] must demonstrate prejudice which implicates the fundamental fairness of the proceeding." Michelson, 897 F.2d at 468. He did not do so. The IJ repeatedly informed Prichard of his right to be represented by counsel, repeatedly ascertained that Prichard had received and had a chance to review the list of persons and organizations providing free or low-cost legal assistance, and repeatedly asked Prichard if he needed a postponement in order to secure counsel. ⁵ Furthermore, there is no indication that there were any grounds for relief available to Prichard at the time of the deportation hearing which an attorney might have brought...