Castaneda-Delgado v. Immigration and Naturalization Service, CASTANEDA-DELGADO and S

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation525 F.2d 1295
Docket NumberNo. 74--1893,CASTANEDA-DELGADO and S,74--1893
PartiesRaudelebastiana Godina de Castaneda, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Decision Date26 November 1975

Page 1295

525 F.2d 1295
Raudel CASTANEDA-DELGADO and Sebastiana Godina de Castaneda,
No. 74--1893.
United States Court of Appeals,
Seventh Circuit.
Argued April 10, 1975.
Decided Nov. 26, 1975.

Page 1296

Alan D. Dockterman, Kalman D. Resnick, Chicago, Ill., for petitioners.

Samuel K. Skinner, U.S. Atty., Chicago, Ill., Mary Jo Grotenrath, Dept. of Justice, Washington, D.C., for respondent.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and BRYAN, * Senior District Judge.

FREDERICK VAN PELT BRYAN, Senior District Judge.

Petitioners, Raudel Castaneda-Delgado and Sebastiana Godina de Castaneda (Raudel and Sebastiana Castaneda), after a hearing before an immigration judge 1, were found to be deportable aliens. They were ordered deported to Mexico unless they departed from the United States voluntarily within two months.

Petitioners appealed to the Board of Immigration Appeals from the order of deportation on the grounds that they had been improperly denied both statutory and constitutional rights to counsel at the hearing. The Board ordered the appeal dismissed, extended the time for voluntary departure and directed that, in the event of failure to depart voluntarily, petitioners should be deported as provided in the order of the immigration judge.

Before us is a petition for review of the Board's order pursuant to Section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a (1970). The petition for review raises the same issues as to denial of petitioners' statutory and constitutional rights to counsel as were raised before the Board of Immigration Appeals. Since we hold that petitioners were improperly deprived of their statutory right to counsel at the hearing before the immigration judge, and reverse the order of the Board on that ground, we do not reach the constitutional question presented.

The Castanedas are natives and citizens of Mexico, residing in Chicago. They are married and have two small children, 15 months and 5 months old at the time of the hearing. Both children were born in Chicago and thus are American citizens by birth. The husband had lost his job, and was unemployed. The wife was employed as a machine operator, with earnings of $82.00 per week. This was their only source of income. Petitioners' language was Spanish and they did not speak or understand English.

On April 21, 1974, Raudel Castaneda was arrested by the Chicago police for an alleged violation of the Illinois Motor Vehicle Code. After interrogating him, the police turned him over to the custody of the Immigration and Naturalization Service (INS). On April 25, 1974, an 'order to show cause, notice of hearing, and warrant for arrest' were served on each of the Castanedas, directing them to appear at a deportation hearing before an immigration judge on April 30. Thereafter, they were notified that the hearing was rescheduled for May 8, 1974 at 2:00 P.M.

Both Castanedas duly appeared before the immigration judge on the afternoon of May 8. After it appeared that they did not speak or understand English, questioning was conducted through a

Page 1297

Spanish interpreter. The following colloquy between the immigration judge and the petitioners ensued:

Q. You have a right at this hearing to be represented by counsel of your own selection without expense to the Government of the United States. Such counsel may be an attorney, that is, a lawyer or other person authorized to act as an attorney in proceedings before the Immigration Service. Or, if you wish to go ahead without a lawyer, you may go ahead without a lawyer. What do you wish to do?

A. We understand, sir; we will like to wait until Friday when we can be represented by our attorney.

Q. All right. I am going to continue your case until Friday morning, May 10, at 9 a.m., to give you an opportunity to have your lawyer with you here. I will not grant any more continuances for that purpose. We will go ahead Friday morning whether you have a lawyer or not. Do you understand?

A. We understand, sir.

On May 10, at 9:00 a.m., petitioners again appeared. They were still without a lawyer. At the commencement of the hearing the following exchange took place between the immigration judge and both Castanedas:

Q. Are you the same Raudel and Sebastiana Castaneda who appeared before me on Wednesday, May 8?

A. Yes, sir.

Q. At that time I granted you a continuance to enable you to obtain an (sic) lawyer to represent you. I see you do not have a lawyer here with you today; can you explain why?

A. The attorney was unable to come and we are going to look for another attorney.

Q. Well, I advised you that I would only grant you one continuance; I will not grant any further ones, we will proceed with the hearing. Will both you and your wife stand and raise your right hands please?

The immigration judge then administered the oath to both. After stating that they would be given an opportunity 'to see, hear and to examine everything that is used as evidence and I'll give you an opportunity to say and present those things that you want me to consider in deciding your cases,' he addressed the following question to both:

Q. I will read each of you the five allegations of fact and the charges that are contained in the orders to show cause that relates (sic) to you, and then I'll ask you to either admit or deny that each is true. Do you understand?

A. Yes (by both).

Raudel Castaneda was charged in the order to show cause with entering the United States without inspection in violation of Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1970). Sebastiana Castaneda was charged with remaining in the United States for a longer time than permitted after admission as a nonimmigrant, in violation of the same section.

Each of them answered 'yes' to a series of questions by the immigration judge as to whether each of the 5 factual allegations in the orders to show cause concerning them was true and as to whether they admitted they were deportable. This was, in substance, a pleading to the orders to show cause under 8 C.F.R. § 242.16(b). These admissions were the only evidence of deportability before the immigration judge. There is no other evidence on that subject in the record. Upon hearing the Castanedas' admissions, the immigration judge considered that deportability had been established. Such inquiries as followed related only to the eligibility of the Castanedas for voluntary departure. At the conclusion of the hearing the immigration judge found them both deportable, afforded them voluntary departure, and advised them of their rights to appeal.

Appeals were taken to the Board of Immigration Appeals from the orders of

Page 1298

deportation. The Castanedas, through the Legal Assistance Foundation of Chicago, secured counsel to represent them on the appeals and counsel filed a brief on their behalf.

The Board of Immigration Appeals found (1) that 'deportability has been established by evidence which is clear, convincing, and unequivocal,' (2) that 'the immigration judge has correctly applied the pertinent legal principles,' and (3) that 'the aliens were not prejudiced by the fact that counsel was not present at the hearing, and . . . were accorded a fair hearing.' It ordered the appeal dismissed. This petition for review followed.


The first question to which we address ourselves here is whether the Castanedas were improperly denied the right, granted by statute and regulation, to be represented by counsel at the hearing of May 10, in which they were found to be deportable.

The Castanedas urge that the action of the immigration judge at that hearing in summarily denying them a further continuance in order to give them time to obtain an attorney to represent them and in compelling them to proceed without an attorney was arbitrary, capricious and an abuse of discretion which improperly and effectively deprived them of their right to be represented by an attorney of their choice.

Two separate sections of the Immigration and Nationality Act, Sections 242(b) (2) and 292, 8 U.S.C. §§ 1252(b) and 1362 (1970), provide in identical language that an alien in a deportation proceeding 'shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.' These sections are implemented by regulations which speak in terms of the 'right' of an alien to counsel in deportation proceedings. 8 C.F.R. §§ 242.2(a), 242.16(a) and 292.5(b).

8 C.F.R. § 292.5(b) provides that '(w)henever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney * * *.' 8 C.F.R. § 242.16(a) requires that, at the opening of a deportation hearing, '(t)he special inquiry officer (now the immigration judge) shall advise the respondent of his right to representation, at no expense to the government, by counsel of his own choice * * * and require him to state then and there whether he desires representation * * *.'

Thus, the Castanedas, as aliens in deportation proceedings, has the right granted by statute and regulation to be represented by an attorney of their choice at no expense to the Government. At the initial May 8 hearing, the Castanedas, in response to a question from the immigration judge, specifically stated that they desired such representation and wished an opportunity to secure an attorney. A continuance from the afternoon of May 8 until 9:00 A.M. on May 10 was granted for that purpose.

On the morning of May 10 the Castanedas appeared without an...

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