Baires v. I.N.S.
| Decision Date | 01 September 1988 |
| Docket Number | No. 87-7081,87-7081 |
| Citation | 856 F.2d 89 |
| Parties | Mario Antonio Portillo BAIRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Andrew Harkness, Smith & Smith, San Francisco, Cal., for petitioner.
Alison R. Drucker and Joan E. Smiley, U.S. Dept. of Justice, Washington, D.C., for respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.
This case arises on a petition for review of a deportation order. Because we find that the petitioner's statutory and regulatory procedural rights were violated, we reverse the order and remand for further proceedings.
Petitioner Portillo Baires, a citizen of El Salvador, entered the United States without inspection on February 3, 1985, near Nogales, Arizona. He was arrested and taken to the Immigration and Naturalization Service ("INS") detention center in Florence, Arizona. His initial deportation hearing was held on February 21 in Florence. Portillo Baires appeared before Immigration Judge William F. Nail, Jr., without counsel; he required the services of a On March 19, Portillo Baires was released on bond from INS custody. He traveled to San Francisco, where he had family and friends, and there retained attorney Robert Andrew Harkness to represent him on a pro bono basis. Harkness prepared a notice of appearance on April 9, the day he was retained; the INS received the notice on April 10. On the same day, Harkness also filed a request for a continuance and change of venue. He noted that he and Portillo Baires had had time to communicate only briefly. He also noted that Portillo Baires was then living and working in San Francisco and that his case required the testimony of witnesses who were located in the San Francisco area. On these grounds, he requested that Portillo Baires' hearing be continued to a later date and held in San Francisco rather than Florence. Judge Nail denied both requests by telephone on April 10.
Spanish language interpreter. In response to Judge Nail's questions, Portillo Baires expressed the desire to find a lawyer and to apply for asylum in the United States. Accordingly Judge Nail continued the hearing. Portillo Baires' request for asylum was submitted on February 25 and his asylum hearing was set for April 15.
Portillo Baires traveled back to Florence for his April 15 asylum hearing. Harkness arranged for attorney David Myers to appear with Portillo Baires. At the hearing, Myers, acting for Harkness, submitted a second request for a continuance and change of venue. In that request, Harkness explained that he had arranged for the testimony of an expert witness but that the expert, who lived in the San Francisco area, could not travel to Florence and could not prepare written testimony in time for the April 15 hearing. Harkness also stated that he was contacting other witnesses in the San Francisco area but could not complete any arrangements with them before April 15. Myers advised the immigration judge of the names of the three potential witnesses and their ability to testify with respect to the facts of Portillo Baires' case.
Once again, Judge Nail denied the request. As the sole ground for the denial, he said that the request had been made too close to the scheduled hearing date to allow him to arrange for some other use of the court's allotted time. He faulted Portillo Baires and Harkness for submitting the request only five days before the scheduled hearing date, and declared, without elaboration, that he found the argument for change of venue "not persuasive." He also noted that he would accept the witnesses' testimony in written form. Judge Nail then proceeded to conduct the hearing and, at its conclusion, held that Portillo Baires was not entitled to asylum or withholding of deportation. The BIA subsequently affirmed Judge Nail's decision.
Portillo Baires petitions this court for review of the BIA's order on several grounds. He asserts that Judge Nail applied the wrong standard to his asylum claim and that he is entitled to both asylum and withholding of deportation as a matter of law. He also contends that his constitutional and statutory procedural rights were violated in several ways: by the judge's denial of his request for a continuance and change of venue; by the judge's denial of his request to subpoena the author of an advisory opinion letter submitted by the State Department's Bureau of Human Rights and Humanitarian Affairs; and by the immigration court's failure to provide Harkness, his attorney of record, with a copy of the hearing transcript.
We grant Portillo Baires' petition for review and reverse the judgment of the BIA on the ground that Judge Nail's denial of Portillo Baires' request for a continuance and change of venue violated his statutory and regulatory procedural rights. Accordingly we need not reach his other claims.
Aliens do not have a sixth amendment right to be represented in deportation proceedings. Castro-O'Ryan v. United States Department of Immigration and Naturalization, 847 F.2d 1307, 1312 (9th Cir.1988) (citing Ramirez v. INS, 550 F.2d 560, 563 (9th Cir.1977)). However, the fifth amendment does guarantee aliens due process in those proceedings. Rios-Berrios v In this case, Portillo Baires argues that Judge Nail's denial of his request for a continuance and change of venue violated his rights to be represented by his counsel of choice and to present evidence in his own behalf. The regulations provide that the immigration judge "may grant a motion for continuance for good cause shown," but do not define "good cause." 8 C.F.R. Sec. 3.27 (1988). We have held, in the context of immigration proceedings, that "the decision to grant or deny continuances is in the sound discretion of the trial judge...." Rios-Berrios, 776 F.2d at 862. But we have also observed that the judge's discretion is limited. In particular, we have cautioned that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay" can render the alien's statutory rights merely "an empty formality." Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). We reverse when we conclude that the judge's actions constitute "an abuse of discretion." Id.
INS, 776 F.2d 859, 862 (9th Cir.1985) (citing United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978)). Moreover, aliens are entitled by statute and regulation to certain specified procedural protections. 1 In particular, they have the statutory right to be represented by counsel of their choice, at no expense to the government. Castro-O'Ryan, 847 F.2d at 1312; Colindres-Aguilar v. INS, 819 F.2d 259, 260-61 n. 1 (9th Cir.1987); 8 U.S.C. Secs. 1252(b), 1362 (1982); 8 C.F.R. Sec. 242.10 (1988). 2 In addition, they are guaranteed a reasonable opportunity to present evidence in their own behalf. 8 U.S.C. Sec. 1252(b) (1982); 8 C.F.R. Sec. 242.16(a) (1988). Denial of these statutory rights may constitute an abuse of discretion requiring remand. See Castro-O'Ryan, 847 F.2d at 1312 (right to counsel); Castro-Nuno v. INS, 577 F.2d 577, 578-79 (9th Cir.1978) (same). Indeed, if the prejudice to the alien is sufficiently great, the constitutional guarantee of due process may be violated. Castro-O'Ryan, 847 F.2d at 1313. However, we need not reach the constitutional issue if we find that a statutory right was violated and that the violation caused prejudice to the alien. Id.; see United States v. Cerda-Pena, 799 F.2d 1374, 1377 n. 3 (9th Cir.1986). 3
The question whether denial of a continuance in an immigration proceeding constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis according to the facts and circumstances of each case. Id. For example, we have remanded a number of cases in which the immigration judge's denial of a continuance, or failure to inquire whether a continuance was needed, resulted in a denial of the alien's right to counsel. See Reyes-Palacios v. INS, 836 F.2d 1154, 1155-56 (9th Cir.1988); Colindres-Aguilar, 819 F.2d at 261; Rios-Berrios, 776 F.2d at 863; Castro-Nuno, 577 F.2d at 579. 4
With regard to change of venue, the regulations provide that the immigration judge, "for good cause, may change venue on motion by one of the parties." 8 C.F.R. Sec. 3.19(b) (1988). Again, "good cause" is not defined; again, denials of such motions must be evaluated on a case by case basis. Again, the decision is committed to the immigration judge's sound discretion and will not be overturned except for an abuse of that discretion. Although we have not addressed many petitions for review in which change of venue was at issue, we have granted at least one petition on facts quite similar to those involved here. In Castro-O'Ryan, the petitioner was being detained in Florence and his immigration proceedings were held before Judge Nail. Castro-O'Ryan claimed that he had sent Judge Nail a telegram requesting a change of venue to San Francisco because he had two material witnesses in the San Francisco area and his counsel of choice was also located there. 847 F.2d at 1311. Judge Nail denied receiving the telegram and said that, even if he had received it, he might not have granted the request. Id. We remanded the case, declaring, Id. at 1313.
Under the circumstances of this case, Judge Nail's denial of Portillo Baires' request for a continuance and change of venue constituted an abuse of his discretion and denied Portillo Baires his statutory right to present evidence...
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