Aguilera-Enriguez v. Immigration and Naturalization Service

• Decision Date: 07 May 1975
• Docket Number: P,AGUILERA-ENRIQUE,No. 74-1565,74-1565
• Citation: 516 F.2d 565
• Parties: Jesusetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 565

516 F.2d 565

Jesus AGUILERA-ENRIQUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-1565.

United States Court of Appeals, Sixth Circuit.

May 7, 1975.

Howard Scher, Burton Fretz, Migrant Legal Action Program, Inc., Alfonso Gonzalez, Washington, D. C., Phyllis A. Reha, Michigan Migrant Legal Assistance Program, Saginaw, Mich., Robert S. Catz, Washington, D. C., for petitioner.

Immigration and Naturalization Service, Washington, D. C., William W. Milligan, U. S. Atty., Cincinnati, Ohio, Immigration and Naturalization Service, Cincinnati, Ohio, for respondent.

Before CELEBREZZE and McCREE, Circuit Judges, and DeMASCIO, ^* District Judge.

CELEBREZZE, Circuit Judge.

Petitioner, Jesus Aguilera-Enriquez, seeks reversal of a deportation order on the ground that he was constitutionally entitled to but was not afforded the assistance of counsel during his deportation hearing. He also claims that the narcotics conviction on which his deportation order is based is not yet final and should not be available as a basis for his expulsion from the United States.

A thirty-nine-year-old native and citizen of Mexico, Petitioner has resided in the United States since December 18, 1967, when he was admitted for permanent residence. He is a married farm worker, living with his wife and three daughters in Saginaw, Michigan.

In December 1971, Petitioner traveled to Mexico for a vacation. An officer of the Saginaw, Michigan Police Department notified federal customs officers at the Mexican border that he had reason to believe that Petitioner would be returning with a quantity of heroin. When Petitioner crossed the border on his return, he was subjected to a search which produced no heroin but did reveal two grams of cocaine.

On April 12, 1972, Petitioner pleaded guilty in the United States District Court for the Western District of Texas, on one count of knowingly possessing a quantity of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 844(a) (1970). Petitioner received a suspended one-year sentence, was placed on probation for five years, and was fined $3,000, to be paid in fifty-dollar monthly installments over the five-year probationary period. Neither Petitioner's appointed counsel nor the District Court informed him that a narcotics conviction would almost certainly lead to his deportation.

On December 7, 1972, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing, charging that because of his narcotics conviction, Petitioner should be deported under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1970).

On February 6, 1973 Petitioner appeared before the Immigration Judge and requested appointed counsel. The Immigration Judge refused this request. After a hearing Petitioner was ordered deported and was not afforded the option of voluntary departure.

Shortly after the Immigration Judge's ruling, Petitioner engaged as counsel a Michigan legal assistance attorney, who in turn secured the services of a Texas attorney.

On February 14, 1973, Petitioner filed an appeal to the Board of Immigration Appeals, stating that the validity of the Texas conviction was being challenged.

On May 23, 1973, Petitioner's Texas counsel filed a motion to withdraw his guilty plea under Rule 32(d), F.R.Crim.P. The motion asserted that the District Court had not followed Rule 11 in accepting the plea because it had not properly determined that there was a factual basis for the plea and that the plea was made with a full understanding of the probable consequences.

On February 1, 1974, after full briefing and oral argument by counsel for Petitioner and the Government, the Board of Immigration Appeals dismissed Petitioner's appeal. A petition for review was timely filed in this Court.

The issue Petitioner raises here is whether an indigent alien has the right to appointed counsel in a deportation proceeding. He attacks the constitutional validity of 8 U.S.C. § 1252(b)(2) (1970), which gives an alien facing deportation proceedings "the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose." ¹ The Immigration Judge held that this section prevented appointment of counsel at Government expense. Since he could not afford to hire a lawyer, he did not have one before the Immigration Judge.

The courts have been vigilant to ensure that aliens receive the protections Congress has given them before they may be banished from our shores. As this Circuit noted in United States ex rel. Brancato v. Lehmann,239 F.2d 663, 666 (6th Cir. 1956),

Although it is not penal in character, * * * deportation is a drastic measure, at times the equivalent of banishment or exile, for which reason deportation statutes should be given the narrowest of the several possible meanings.

See also Immigration and Naturalization Service v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479, 83 S.Ct. 1819, 10 L.Ed.2d 1013 (1963). The Supreme Court has held that once an alien has been admitted to lawful residence, "not even Congress may expel him without allowing him a fair opportunity to be heard." Kwong Hai Chew v. Colding, 344 U.S. 590, 598, 73 S.Ct. 472, 478, 97 L.Ed. 576 (1953). Thus, if procedures mandated by Congress do not provide an alien with procedural due process, they must yield, and the constitutional guarantee of due process must provide adequate protection during the deportation process. ² Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Wong Yang Sung v. McGrath, 339 U.S. 33, 49-51, 70 S.Ct. 445, 94 L.Ed. 616 modified on rehearing, 339 U.S. 908, 70 S.Ct. 564, 94 L.Ed. 1336 (1950).

The test for whether due process requires the appointment of counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide "fundamental fairness the touchstone of due process." Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). ³ In Petitioner's case the absence of counsel at his hearing before the Immigration Judge did not deprive his deportation proceeding of fundamental fairness.

Petitioner was held to be deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11), which states in relevant part:

(a) Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who

(11) . . . at any time has been convicted of a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs . . ..

Before the Immigration Judge, Petitioner raised no defense to the charge that he had been convicted in April 1972 of a violation of 21 U.S.C. § 844(a). Thus, he was clearly within the purview of section 241(a)(11) of the Act, and no defense for which a lawyer would have helped the argument was presented to the Immigration Judge for consideration. After the decision of the Immigration Judge, Petitioner moved to withdraw his guilty plea in the Texas District Court under Rule 32(d), F.R.Crim.P. He then urged before the Board of Immigration Appeals that this motion took him outside the reach of section 241(a)(11), because the likelihood of success on that motion meant that he had not been "convicted" of a narcotics offense. He was effectively represented by counsel before the Board, and his argument was considered upon briefing and oral argument. The lack of counsel before the Immigration Judge did not prevent full administrative consideration of his argument. Counsel could have obtained no different administrative result. "Fundamental fairness," therefore, was not abridged during the administrative proceedings, and the order of deportation is not subject to constitutional attack for a lack of due process. Henriques v. Immigration and Naturalization Service, 465 F.2d 119, 120-21 (2d Cir. 1972); Villanueva-Jurado v. Immigration and Naturalization Service, 482 F.2d 886, 888 (5th Cir. 1973); Sumio Madokoro v. Del Guercio, 160 F.2d 164 (9th Cir. 1947).

We turn, therefore, to Petitioner's second contention that his conviction on the Texas narcotics charge has not reached the stage of finality required to support deportation under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1970).

That section, as excerpted above, provides for the deportation of any alien who "at any time has been convicted of . . . any law . . . relating to the illicit possession of or traffic in narcotic drugs." ⁴ Petitioner argues that because he has filed a motion to withdraw his guilty plea under Rule 32(d), F.R.Crim.P., and because that motion is likely to succeed, ⁵ the conviction by way of judgment and sentence on April 12, 1972 does not mean that he "has been convicted" of a narcotics offense under section 241(a)(11).

The definition of "convicted" within section 241(a)(11) is a matter of federal law, to be interpreted in harmony with the policies underlying the Immigration and Nationality Act. Gutierrez-Rubio v. Immigration and Naturalization Service, 453 F.2d 1243 (5th Cir. 1972); Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804, 808-809 (9th Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965); Gutierrez v. Immigration and Naturalization Service, 323 F.2d 593, 596 (9th Cir. 1963).

The Immigration authorities must look to judicial records to determine whether a person has been "convicted" of a crime. They may not determine on their own an alien's guilt or innocence. Rassano v. Immigration and Naturalization Service, 377 F.2d 971, 974 (7th Cir. 1967); Mylius v. Uhl, 210 F. 860 (2d Cir. 1914). Because judicial records,...