Calderon-Ontiveros v. I.N.S.

• Decision Date: 29 December 1986
• Docket Number: P,CALDERON-ONTIVERO,No. 86-4503,86-4503
• Citation: 809 F.2d 1050
• Parties: Amalioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1050

809 F.2d 1050

Amalio CALDERON-ONTIVEROS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-4503

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 29, 1986.

Joseph J. Rey, Jr., El Paso, Tex., for petitioner.

Madelyn E. Johnson, Washington, D.C., Edwin Meese, III, Atty. Gen., Dept. of Justice, Robert L. Bombough, Civ. Div., Allen W. Hausman, Asst. Director, Jane A. Williams, Washington, D.C., David H. Lambert, Dist. Director, I.N.S., New Orleans, La., A.H. Giungni, Dist. Director, El Paso, Tex., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

This is a deportation case. Amalio Calderon-Ontiveros (Calderon-Ontiveros), who conceded deportability at his deportation hearing, appeals from the Board of Immigration Appeals' (BIA) affirmance of an immigration judge's decision denying him both suspension of deportation and voluntary departure. The BIA also held that Calderon-Ontiveros' due process rights were not violated in the deportation hearing. Calderon-Ontiveros raises only this latter issue on appeal, and we affirm the BIA.

Facts and Proceedings Below

At his deportation hearing, Calderon-Ontiveros, a Mexican citizen, admitted illegally entering the United States in 1970, 1976, 1978, and 1984. In 1978, he was accompanied by the woman with whom he had been living in Mexico and their child. The pair were soon married in Chicago, Illinois and have since had three more children, all United States citizens. In July 1984, officers with the Immigration and Naturalization Service (INS) apprehended Calderon-Ontiveros in Las Cruces, New Mexico and he was sent back to Mexico. Later that month, he crossed the border back into this country, but was apprehended while doing so by INS officials. The present proceedings commenced with a deportation hearing held on September 24, 1984.

Calderon-Ontiveros, who was represented by counsel at the hearing, conceded deportability. He gave notice that he would seek voluntary departure. See 8 U.S.C. Sec. 1254 (providing for voluntary departure which "offers significant advantages over deportation." Parcham v. INS, 769 F.2d 1001, 1002 n. 1 (4th Cir.1985)). Calderon-Ontiveros also gave notice that he would seek suspension of deportation, see 8 U.S.C. Sec. 1254(a)(1), although he apparently had not filed a formal application for this relief.

The immigration judge recognized that a threshold requirement for suspension of deportation is that the applicant have been "physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application." Id. He was also familiar with the Supreme Court's holding that this continuous physical presence requirement is to be applied literally. INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 592-93, 78 L.Ed.2d 401 (1984). Accordingly, he asked Calderon-Ontiveros a series of questions designed to identify past instances when he had illegally entered the United States. If such an entry fell within the preceding seven years, Calderon-Ontiveros necessarily would have established an absence from the country and thus his ineligibility for suspension of deportation. The government offered as evidence the INS report describing Calderon-Ontiveros' July 30, 1984 apprehension as he entered the United States near El Paso. Before admitting this document, the judge questioned Calderon-Ontiveros about it and asked him to underline the portions with which he disagreed. This questioning occurred off the record; the judge denied the request of Calderon-Ontiveros' attorney to read the report prior to his questions. The attorney did, however, confer with Calderon-Ontiveros while the judge read and explained the apprehension report. After questioning Calderon-Ontiveros, the judge admitted the report into evidence. When the proceedings went back on the record, Calderon-Ontiveros admitted that he had been outside the United States in July 1984.

The immigration judge's manner of conducting the hearing--his questioning of Calderon-Ontiveros with regard to the apprehension report before allowing counsel to read it, his admission of the report into evidence, posing some questions off the record, and his on-the-record colloquy with Calderon-Ontiveros concerning the latter's past illegal entries into this country--so aggravated Calderon-Ontiveros' attorney that when his turn came to present evidence he refused to do so, and asked instead that the judge terminate the hearing on grounds that his client's due process rights had been violated. The judge refused to stop the hearing and then denied suspension of deportation and voluntary departure. The judge held that Calderon-Ontiveros was not entitled to the former relief because he had not been continuously present in the United States during the preceding seven years. The judge denied voluntary departure because of Calderon-Ontiveros' past history of illegal entries.

In his appeal to the BIA, Calderon-Ontiveros complained that the actions of the immigration judge interfered with his constitutional right to counsel. He also asserted that the judge abused his discretion in denying suspension of deportation and voluntary departure. In a brief order, the BIA affirmed the immigration judge.

Calderon-Ontiveros timely instituted this appeal and raises only the issue of whether the immigration judge violated his due process rights guaranteed by the fifth and fourteenth amendments.

Discussion

By failing to brief the voluntary departure and suspension of deportation issues, Calderon-Ontiveros has waived our consideration of them. We do not examine issues not raised on appeal "absent the possibility of injustice so grave as to warrant disregard of usual procedural rules." McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir.1984) (en banc) (footnote omitted); see Olgin v. Darnell, 664 F.2d 107, 108 (5th Cir.1981). After studying the record, it is plain to us that we will create no such possibility by applying the usual rule here.

We must, however, consider whether the immigration judge violated the due process rights of Calderon-Ontiveros. In the administrative law context, as elsewhere, procedural due process is violated only if the government's actions substantially prejudice the complaining party. Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981); see Keough v. Tate County Board of Education, 748 F.2d 1077, 1083 (5th Cir.1984).

Calderon-Ontiveros apparently believes that the immigration judge's vigorous questioning substantially prejudiced his case. ¹ We disagree and hold that the judge's questions did not deny Calderon-Ontiveros a fair and meaningful hearing. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (stating that "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner' ") (quoting Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); see also Harper v. Lindsay, 616 F.2d 849, 858 (5th Cir.1980) (noting that the "fundamentals of due process" are notice, hearing, and appeal). The judge's questions do not appear to have been designed to trick Calderon-Ontiveros and he does not suggest that the judge's participation resulted in an incorrect resolution of his case. Based on his own admissions, Calderon-Ontiveros was not entitled to suspension of deportation, and his history of past illegal entries is ample support for a discretionary denial of voluntary departure. See Carnejo-Molina v. INS, 649 F.2d 1145, 1151 (5th Cir.1981) (stating that appellate review of a...